Arlen Specter

Mr. SPECTER

Mr. SPECTER. Mr. President, I ask unanimous consent that I may be permitted to speak for up to 20 minutes in morning business.

Mr. SPECTER. Mr. President, I have come to the floor to seek recognition on the issue of the Foreign Intelligence Surveillance Act, which will be the order of the business of the Senate later this week, and I have an amendment pending there. But before proceeding to that important subject, I would like to make a comment or two about what has occurred on the Senate floor already. At the outset, I compliment my distinguished colleague from Oregon, who has played such an important leadership role in the Senate generally since coming over from the House, working with him on many items, and taking a very close look at an innovative approach to health care coverage for all Americans. There is no doubt about the need to have that coverage. The question is how we do it, maintaining the essentials of the free enterprise system to avoid the bureaucracy of the so-called Clinton plan from 1993, which put a great bureaucracy between the doctor and the patient. What Senator Wyden has proposed, along with Senator Bennett, on a bipartisan basis, is very carefully considered--with a significant number of sponsors on both sides--is a good way to proceed, and my staff and I are taking a very close look at that important proposal. Just on a personal note, while Senator Wyden is a westerner, and some might say I am an easterner, we were both born in Wichita, KS, which may not be a mark of great distinction but worth a 20-second notation on the floor of the Senate. Somebody listening in Wichita this afternoon--my Aunt Rose--watches fastidiously, so I want to give a little salute to the hometown.

Mr. SPECTER

Mr. SPECTER. Mr. President, I was pleased to hear some of the comments by our leaders earlier on a conciliatory note after the fireworks a week ago Thursday before we adjourned. The fireworks over the Medicare bill I think vastly overshadowed the fireworks a week later on the Fourth of July. I am glad to hear them talk about working together. If there is one point of virtual unanimity in America today, it is the American people are sick and tired of the partisan bickering in Washington, DC. When they talk about coming together on energy and the high prices of gasoline, every Member has to hear it everywhere because that is such a prominent item of great pain and suffering in America today: the high cost of gasoline and the high cost of heating oil when winter comes, especially for the seniors who have the choice of either heating or eating. I believe there are some things that can be done in the short term, difficult as so many of the items are. I have spoken before about the issue and do not intend to speak at length today. But I am encouraged by what Senator Reid and Senator McConnell have had to say. One item which could be acted upon immediately, which could have some immediate impact, is the effort Senator Kohl and I have made for many years now to take away the antitrust exemption for OPEC oil-producing nations. Right now, they have a sovereign immunity. But there is nothing sovereign about what goes on in fixing the prices of oil in the international market--fixing the prices by having the OPEC countries get into a small room, lower production and increase the cost because the supply is lower and the demand is greater. While we certainly ought to undertake conservation measures, as we finally did, raising the miles per gallon last year to 35, and with many other items we could make on conservation, we could have a significant and short-term impact upon supply by taking away the antitrust exemption, which we can do under the case law. It is a commercial transaction. It passed the Senate by a big vote. More than 70 Senators voted for it in the past. It is on the agenda. It has been voted out of the Judiciary Committee. The OPEC countries say they shouldn't be subject to the antitrust laws. Well, they find it very profitable not to be. They say it wouldn't do any good because OPEC is paying now for all of the production it can undertake, but 3 weeks ago, Saudi Arabia made an announcement that they were going to increase production. The speculation behind that announcement was that they were concerned about measures which were being undertaken by the United States and other countries to respond. In the long term, their interests might be best off if they increase production. Well, I think if they were subjected to the antitrust laws, we would put them to the test. There is no earthly reason they should not be subjected to our antitrust laws. That has not moved forward because of some concerns that there ought to be some companion legislation on drilling. Well, that is something which ought to be considered--not carte blanche and not necessarily in broad, sweeping terms but on a case-by-case basis. I have a very strong record in my tenure in the Senate on environmental protection, but if you take ANWR, I was convinced 20 years ago when I made a trip there that ANWR could be the subject of very substantial exploration with adequate concern for environmental protection. ANWR has a footprint about as big as Philadelphia International Airport, and there are ways of drilling down with a single hole proliferating underground. I saw the caribou there. I saw the other drilling in the area. I saw how the caribou and other environmental concerns could be protected. Too often, when the matter has come up on the floor--and it has come up on many occasions--we can't get to the 60-vote threshold; 56, 57, something in that range. It becomes a battle by competing forces who are dug in and entrenched. I think it is an item the Congress could consider in some greater detail and on a selective basis move in the immediate future to try to increase our own capacity. You don't have to go completely on offshore or completely on shale or completely in any direction, but some studied analysis and some careful consideration, trying to leave the entrenched battle lines which have characterized this body and the House on this issue for so long, would be very salutary and I think could lead to a better result. At least that is one man's opinion, having been there, having looked at it, and having heard people on both sides over the past two decades. The subject of Medicare is very much a lead topic. It is the lead story in the New York Times this morning, and it is the lead story all across America. It would be my hope that the leaders could yet come to a resolution of the issue on some sensible terms without having a ``gotcha'' vote; without moving forward, as the majority leader did a week ago Thursday, on predicting how many Democratic Senators there would be and making it a test case and having a political cost on the vote, but to try to work it through to get legislation finished so that doctors do not get a 10.6-percent cut. I believe there is widespread support in both bodies not to have that cut go into effect and to alleviate the concerns of seniors that doctors will stop taking Medicare patients because of that cut, which is so excessive-- legislation which has been pending for a long time. Each year, the cut comes up, and each year, the cut is rescinded. The core problem on this issue really arises from the difficulties caused by the procedure known as filling the tree. We have seen, in the course of the past two decades, a new procedure adopted where the majority leader utilizes his primacy--that means his ability to get recognition--to offer an amendment and then to offer a second amendment before any other Senator has a chance to offer an amendment, and then no other Senator can offer an amendment. When the Medicare bill first came up 2 or 3 weeks ago, I talked to Senator Reid and said that I would support cloture if the procedures of the Senate were honored and an amendment could be offered. He said he would do that. I voted for cloture. When the bill came up a week ago Thursday, there was no opportunity to offer an amendment because the House of Representatives had passed a Medicare bill and left town. They do that from time to time. They pass a bill, send it over, and leave town. They present an ultimatum to the Senate: Take it or leave it--a rather convenient way to have a de facto amendment to the U.S. Constitution. The Constitution provides for a bicameral legislature. For those who don't know that highfalutin word, that means there are two bodies. All grade school children know you have to pass a bill in the House and a bill in the Senate, and then it goes to the President for signature or veto. But when the House leaves town, suddenly it becomes a unicameral legislature--a constitutional amendment, all in one fell swoop by buying airplane and railway tickets. Well, I am not prepared to accept that kind of an edict from the House of Representatives or the majority leader or anybody, and it would seem to me that processes were being shortcut. It took the unusual step of writing to the President and urging him to use his constitutional authority to recall the House of Representatives into session during the week of July 4th. I didn't have much expectation that it would be done, but the House ought not to leave town and leave us without recourse to offer amendments, which is our right under the Constitution, and to send it back to the House for their concurrence, and that could be done yet. It is my hope we will move in that direction. This business of filling the tree is of recent origin. Going back to the 99th Congress in 1985 and 1986, Senator Dole used it five times. Senator Byrd used it in the next Congress three times. In the next Congress, Senator Mitchell didn't use it at all. Then, in the 103rd, for 1993 and 1994, Senator Mitchell used it nine times. Then Senator Lott picked it up a few times in the intervening years until the 106th Congress, when he used it nine times. Then Senator Frist used it nine times in the 109th Congress. So far, Senator Reid has used it 12 times. That process precludes Senators from offering amendments. That is not the way the Senate has been designed to run. I was concerned about this and made an extensive statement on global warming and in February of last year, some 18 months ago, introduced a rule change and wrote to the chairperson of the Rules Committee and the ranking Republican urging that that rule be taken up so that the Senate can work its will on preserving the right of Senators to offer amendments. Were that to be done, then when the effort was made on cloture, it wouldn't be summarily dismissed if there was a fair chance to offer amendments. There has been a major development on the very important issues relating to warrantless wiretapping in an opinion issued by the Chief Judge of the U.S. district court in San Francisco on the constitutionality of the Foreign Intelligence Act. The case handed down last Wednesday--some 56 pages, very complicated, very important--is on the issues which are being raised in the debate which we are going to have later this week on FISA. This is the same judge who handed down another very extensive opinion on the litigation involving the 40 telephone companies that are being sued in his court, issued on July 20, 2006, some 29 pages. This case is now under appeal under the state secrets doctrine. Because of their tremendous impact on the issues which we are going to be considering, interested parties may review Chief Judge Walker's opinion in Al-Haramain Islamic Foundation v. Bush online at: http:// www.cand.us courts.gov/cand/judges.nsf/61fffe74f99516 d088256d480060b72d/35760d9e4cc9207588257 47a0082f983/$FILE/Al_Haramain% 20Order%20Following %20Remand%207-2-08.pdf and his decision in Hepting v. AT&T, located at 439 F.Supp. 2d 974 (N.D. Cal. 2006).

Mr. SPECTER. The core of Chief Judge Walker's opinion is a very important holding, and that is essentially that the Foreign Intelligence Surveillance Act is the exclusive way to have wiretapping and that the President exceeded his constitutional authority in putting into effect the terrorist surveillance program. This is what Chief Judge Walker had to say: Congress appears clearly to have intended to, and did, establish the exclusive means for foreign intelligence surveillance activities to be conducted. Whatever power the executive may otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities. The Supreme Court of the United States candidly ducked the issue in the case coming out of Detroit. The Federal judge there had held the terrorist surveillance program unconstitutional. The Sixth Circuit reversed on the ground of standing, but, as demonstrated from the scholarly dissenting opinion on the standing issue, there was ample grounds to have granted standing. It is really a very flexible doctrine. Then the Supreme Court of the United States denied certiorari and in effect ducked the case, really avoiding deciding the most important constitutional confrontation of our era on the President's authority under article II and the congressional authority under article I. But now the fat is in the fire again, as of last Wednesday, with Judge Vaughn's opinion. Then you come down to the issue of standing, which is still to be determined, but this is what Judge Walker had to say about that: Both plaintiff amici hint at the proper showing when they refer to ``independent evidence disclosing that plaintiffs have been surveilled'' and a ``rich load of disclosure to support their claims'' in various of the multidistrict litigation cases. So that when you have Judge Walker, who has the consolidation of the 40 cases picking up this issue, there is strong--well, it is more than a suggestion or a hint; it is a pretty extensive statement that there is a rich load of disclosure to support the claims of standing. The business about the court stripping is always problemsome. But it is especially problemsome in the context of an ongoing case that is about to reach fruition, where such extensive consideration has been given and a decision may be imminent. It is very unseemly on our doctrine of separation of powers for the Congress to step in and grant retroactive immunity. This is especially problemsome, as I see it, because we are being asked to grant retroactive immunity where there has not even been an on the record disclosure of what we are immunizing. You have the allegations as contained in the litigation--the allegations of data mining--but you have a program where most of the Members of Congress have not even been briefed on it. Yet we are asked to come in and grant retroactive immunity. It is especially problemsome, as I see it, because we could maintain the program and still not subject the telephone companies to liability in a couple directions. The telephone companies have been good citizens. When this matter came up several months ago the first time in the Senate, I proposed an amendment to substitute the Federal Government as the party defending. The party can take over the litigation in the shoes of the telephone companies, with the same defenses, no more and no less than the telephone companies have, no governmental immunity, no sovereign immunity but State secret doctrine, if it applied. That way, you don't foreclose the courts from acting. There is another alternative, which is my pending amendment-- scheduled to be argued and voted upon this week. Our legislation does not give it to the Foreign Intelligence Surveillance Courts but to the district courts generally. But all there has to be is a showing that there was a request made in the proper form by the administration to the judge for carrying out this program, whatever it is. That is under our bill. Well, my amendment would broaden that to give the court the jurisdiction to decide constitutionality. In a sense, that has already been foreclosed by what Judge Walker said last Wednesday in finding the terrorist surveillance program unconstitutional. The Foreign Intelligence Surveillance Act of 1978 not only covers warrantless wiretapping, but it covers pen registers and it covers trap-and-trace devices. So presumably--and this is all a matter of presumption because we don't know exactly what the program is--it would cover whatever program there is at issue in this legislation. And then we have the amendment pending by Senator Bingaman, which I am working on with him collaboratively, which picks up the obligation of the inspectors general of the various intelligence agencies to review the program and then to send it back to Congress 90 days later to see if we will uphold it when we know something more about the program. Certainly, today, it qualifies as a pig in a poke. We don't know what it is for which we are asked to grant retroactive immunity. So another alternative would be the proposal that Senator Bingaman has introduced, which I have cosponsored, which would call for the decision at a time when Congress at least knows a little something about what it is we are voting on. In essence, I submit that we have come to a very serious situation where, in the future, historians are going to look back at the period from 9/11 to the present time as the greatest expansion of executive authority in history. The Congress has been totally ineffectual to restrain that. The National Security Act of 1947 requires that both intelligence committees be fully briefed on programs such as the terrorist surveillance program, which was violated by the President and the executive branch. Briefings were not made until piecemeal, and finally they needed the confirmation of General Hayden. It has been longstanding tradition for the executive branch to tell the chairman of the Judiciary Committee and the ranking member about this. It came as a surprise to me by reading the New York Times one Friday in December of 2005, when we were arguing the PATRIOT Act on the final day and expected to pass it, and the legislation blew up in our faces when that was disclosed. Some Senators said they intended to vote for the PATRIOT Act but didn't do so when confronted with the secret program that the administration had not disclosed. But the administration violated the statute and had no recourse. The administration violated the Foreign Intelligence Surveillance Act and could not get a review by the Supreme Court of the United States in the case coming out of Detroit and the Sixth Circuit. Then you had the hesitancy of the Supreme Court ruling on habeas corpus. In Rasul, Justice Stevens's opinion goes at great length to trace the constitutional common-law basis for the right of a writ of habeas corpus, starting with John at Runnymede, which was 1215. There was an alternative analysis of the statute on habeas corpus. The case gets to the District of Columbia Circuit Court, and they ignore the citations of constitutional authority and say: Well, Congress changed the statute and that governs, flying in the face of a Supreme Court direction and order from a superior court. And then the Supreme Court danced around Boumediene for a long time. First, cert was denied, and then in an unusual petition for reargument, taking five votes, granted cert because of the ineffective and insufficient procedures of the combat status review board. So you have a long history of ineptitude--total ineptitude--by the Congress and more than ineptitude by the Congress, complicity in passing the Military Commissions Act and facilitating a free hand by the administration in changing the legislation on habeas corpus. That should not have had an impact on the ultimate result because habeas corpus is a constitutional right, and the Supreme Court finally got around to saying so when confronted with the totally insufficient procedures on the combat status review board. So we have another chance when the FISA legislation comes up. We have a lot of guidance, from what Chief Judge Walker has had to say. It is understandable that the Congress continues to support law enforcement powers because of the continuing terrorist threat. No one wants to be blamed for another 9/11. My own briefings on the telephone companies' cooperation with the Government--and I speak in terms only of reports and allegations because it is not a matter of record--my own briefings on the telephone companies' cooperation with the Government have convinced me of the program's value, so that I voted for it, even though my amendment to substitute the Government for the telephone companies was defeated in the Senate's February vote. Similarly, I am prepared to support it again as a last resort, even if it cannot be improved by providing for judicial review. However, since Congress has been so ineffective in providing a check and balance, I will fight hard this week--starting today with this speech--to secure passage of an amendment to keep the courts open. When the stakes are high, as they invariably are when Congress addresses civil liberties and national security, Members frequently must choose between the lesser of two imperfect options. Unfortunately, we too often back ourselves into these corners by deferring legislation until there is a looming deadline or a congressional recess. Perhaps that is why so many of my colleagues have resigned themselves to accept the current bill without seeking to improve it. I ask my colleagues to look to Judge Walker's opinions as guidance as to what we ought to be doing to back him up on what he has done, in a courageous way, in taking the bull by the horns and declaring the terrorist surveillance program unconstitutional and setting the path for standing. Although I am prepared to stomach the bill if I must, I am not ready to concede that the debate is over. Contrary to the conventional wisdom, I don't believe it is too late to make this bill better. Perhaps the Fourth of July holiday will inspire the Senate to exercise its independence from the executive branch now that we have returned to Washington. I thank the Chair and my distinguished colleague from North Dakota for his patience--if he has any. Senator Dorgan customarily does. I yield the floor.

Mr. SPECTER

Mr. SPECTER. Mr. President, this Medicare legislation is a very important bill. I believe that it is vital for the Senate to take up this important measure to have open debate to give Senators an opportunity to offer amendments and to have the Senate work its will on these important questions. As noted in previous floor statements, I have been concerned about Majority Leader Reid's practice of employing a procedure known as filling the tree, which precludes Senators from offering amendments. This undercuts the basic tradition of the Senate to allow Senators to offer amendments. Regrettably, this has been a practice developed in the Senate by majority leaders on both sides of the aisle, so both Republicans and Democrats are to blame. On June 12, 2008, I voted in favor of cloture on the motion to proceed on S.3101, legislation similar to H.R. 6331, to prevent the reduction in Medicare payments to physicians. At that time, I was assured by Majority Leader Reid that he would not make a procedural motion to fill the tree. Following the failure to obtain cloture on the motion to proceed to S.3101, Finance Chairman Baucus and Ranking Member Grassley began to negotiate a bipartisan bill that could be brought before the Senate. I have concerns with some provisions that may have been contained in such an agreement. However, the prospect of the Senate working its will and allowing myself and other Senators to offer amendments to such a bill is more favorable than filling the amendment tree. The posture of the Senate is such that for the Majority Leader to complete action on H.R. 6331 and send it to the President before the physician payment reduction is scheduled to go into effect at the end of June, the Senate must pass the same legislation the House of Representatives passed. This is the case because the House of Representatives adjourned for the Independence Day recess prior to the Senate vote on cloture on the motion to proceed to H.R.6331. Since the House will be out of session, there will be no possibility for the House to consider a Senate amended Medicare bill. To guarantee that the same Medicare legislation will be passed by the Senate, no amendments to the legislation were permitted. By bringing this legislation up at the last minute after the House of Representatives adjourned the Majority Leader prevented the opportunity to offer amendments and undermined Senate procedure. If cloture were to have been obtained on the motion to proceed to H.R. 6331 the legislation would have been vetoed by President Bush. That veto would have resulted in a further delay, since the House would not be in session to override the veto and the scheduled physician payment reductions would go into effect at the end of June. There was an expectation that the Senate would extend the current physician payment rate for 30 days and prevent the pending reduction from going into effect. However, when this legislative extension was offered by Senate Republican Leader McConnell it was objected to by Majority Leader Reid. This vote was a crass partisan political exercise. The majority leader has been aware of this issue for some time and scheduling should have accommodated for the amendment process. I have consistently voted in favor of increasing Medicare physician payments and will continue to, but I am not going to vote in favor of cloture when there is no opportunity to amend the legislation that comes before the Senate. I will not submit to procedures that prevent the Senate from performing its traditional duty. This is why I voted against cloture on the motion to proceed to H.R. 6331. I expect that this very important issue will be taken up as soon as we return from the Independence Day recess so we can correct this grave problem in a manner that allows the Senate to work its will.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to discuss legislation introduced yesterday entitled the Gas Price Reduction Act. I have agreed to join over forty of my Republican colleagues to cosponsor this legislation because I believe Congress needs to take action to address high oil and gasoline prices, as well as America's overall energy security going into the future. My cosponsorship of this bill does not mean that every provision has my full support. My office received the final legislative text late yesterday morning and I have not had a great deal of time to analyze all of the details. That said, I have reluctantly decided to cosponsor this bill to signal my concern with the state of our Nation's energy situation. I have long supported efforts to reduce U.S. oil demand through conservation and efficiency whenever practical, as well as increase domestic oil production in an environmentally safe manner, and encourage energy markets that are free of price manipulation. I am extremely concerned about the high cost of oil, gasoline, diesel and other fuels which are exacerbating our nation's already difficult economic situation and truly hurting American consumers and families. With oil near $140 per barrel and gasoline over $4 per gallon, we are facing an unsustainable situation. The legislation introduced today proposes to increase the supply of oil, promote technology to lower fuel consumption, and increase oversight and transparency of energy markets. Specifically, the bill would allow consideration for oil exploration and production on the Outer Continental Shelf on the Atlantic and Pacific coasts with appropriate environmental protection at the request of a State's Governor and State legislature. Any authorized drilling could only occur beyond 50 miles offshore and only if the federal government determines that leasing would not create an unreasonable risk of harm to the marine, human, or coastal environment. Further, all existing environmental laws would have to be followed. The second part of the bill would allow the Department of Interior to move forward with leasing of land in the Western U.S. to develop oil shale. It is my understanding that there are very large deposits of energy resources that could be tapped with significant investments in rock extraction technology. This resource is much less understood than oil and natural gas drilling. I support locating as many domestic resources as we can in an environmentally safe manner. However, I am concerned about claims made by opponents that opening these lands at this time is premature until Congress and the executive branch have the ability to study the results of research and development efforts. Further, some argue that Congress should first review regulations drafted by the Bureau of Land Management, but which are under review by the Office of Management and Budget. Finally, we should be fully informed about the energy and water inputs that may be necessary for extraction, as well as the greenhouse gas emissions associated with production of oil from shale. The third title of this bill seeks to increase research, development and deployment of advanced plug-in electric cars and trucks. There is a great deal of emphasis being placed on the promise of plug-in electric vehicles as a replacement technology for today's fuel-consuming vehicles. The potential benefits of plug-in electric vehicles includes much higher energy efficiency, elimination of the need for oil, and use of existing and expanded electric infrastructure. The legislation under consideration would increase research and development for advanced batteries, which will be required to allow these vehicles to drive long distances without needing to recharge. The bill also authorizes a loan program for the re-tooling of advanced battery manufacturing facilities. Finally, it calls on the federal government to purchase plug-in electric vehicles to the extent practicable to help increase market penetration of the technologies and make significant reductions in government-related fuel use. Finally, this legislation attempts to strengthen futures markets. There are concerns that the role of speculation in these markets is impacting today's oil and gasoline prices. Therefore, this bill authorizes increased funding and staff for the Commodity Futures Trading Commission--CFTC. It requires the President's Working Group on Financial Markets to conduct a study of international regulation of energy commodities markets. It codifies recent CFTC action on position limits and transparency for foreign boards of trade that are involved in the U.S. oil trading market. Finally, it requires the CFTC to gather information on index traders and swap dealers. Many of these proposals result from the fact that a lack of information in the oil markets is making it very difficult to pinpoint whether and to what extent new actors in the oil markets may be causing some of the price increases we have experienced. I have been working for many years to tackle the high price of oil and gasoline and improve U.S. energy security. I have long been concerned about OPEC--Oil Producing and Exporting Countries--fixing the price of oil, which makes up the largest share of gasoline prices. I continue to work with my colleagues on both sides of the aisle to pass S. 879, the No Oil Producing and Exporting Cartels Act--NOPEC. NOPEC clarifies that it is unlawful under the antitrust laws for OPEC members to agree to limit the production or distribution, or to set or maintain the price, of petroleum products or natural gas. Further, on May 7, 2008, I questioned top oil company executives on high oil and gasoline prices at the Senate Judiciary Committee. Among other points, I asked them to justify the record profits their companies have earned while Americans pay record high prices at the pump. When I was chairman of the Senate Judiciary Committee, I held two hearings in February and March of 2006 to consider the effects of consolidation in the energy industry and whether such concentration had resulted in increased prices of gasoline, other petroleum-based fuels and natural gas. Those hearings prompted me to introduce the Oil and Gas Industry Act of 2006 to require U.S. antitrust agencies to further consider whether mergers within the oil and gas industry have violated antitrust laws and if such mergers and information sharing among companies should receive further scrutiny. Dating back to 2002, I was the lead cosponsor of fuel savings legislation, including the Carper-Specter amendment to save 1 million barrels of oil per day by 2015 and in 2003 the Landrieu-Specter amendment to save 1 million barrels per day by 2013, which passed by a vote of 99-1. I believe the foundation we laid in the Senate helped lead to the eventual passage of the first automobile fuel efficiency standard increases since the 1970s. On December 19, 2007, the President signed the Energy Independence and Security Act which contained legislation I cosponsored to increase automobile fuel efficiency standards to 35 mpg by 2020. This increase in efficiency, and the anticipated decrease in consumption, could substantially decrease oil use and bring down prices over time. I commend my colleagues on both sides of the aisle for their proposals to address today's unacceptable oil and gasoline price situation. However, I do not think any purely partisan exercise will ultimately prove successful. While I joined my Republican colleagues in introducing legislation today, I am convinced that we must work in a nonpartisan fashion to tackle this issue of paramount importance to our constituents and the economic health of our Nation. As evidenced by the unification of the parties that occurred in December 2007 with the Energy Independence and Security Act, when the parties work together, the American people benefit. I recommend we all rise above politics and work toward constructive solutions to the energy crisis we currently face. As we consider the Gas Price Reduction Act and other proposals, it is essential that we not act in haste, but rather consider all potential consequences. When we talk about opening new areas for domestic oil production, we must have all of the facts not just about the potential oil reserves, but also about the precise environmental impacts and the status of the advanced technologies like directional drilling that are purported to mitigate these impacts. When Congress involves itself in very complex energy markets, we ought to be very cautious to avoid unintended consequences that could exacerbate the high and volatile prices we have seen in recent months and years. I look forward to working with my colleagues on these difficult, but extremely important matters.

Mr. SPECTER

Mr. SPECTER. Mr. President, I seek recognition today to introduce the Attorney-Client Privilege Protection Act of 2008, which is a modified version of my earlier legislation by the same name. This legislation, which adds original cosponsors, continues to address the Department of Justice's corporate prosecution guidelines. Those guidelines, last revised by former Deputy Attorney General Paul McNulty in December 2006, erode the attorney-client relationship by allowing prosecutors to request privileged information backed by the hammer of prosecution if the request is denied. Like my previous bill, S. 186, this bill will protect the sanctity of the attorney-client relationship by prohibiting federal prosecutors and investigators from requesting waiver of attorney-client privilege and attorney work product protections in corporate investigations. The bill would similarly prohibit the government from conditioning charging decisions or any adverse treatment on an organization's payment of employee legal fees, invocation of the attorney-client privilege, or agreement to a joint defense agreement. The new version of the bill makes many subtle improvements, including defining ``organization'' to make clear that continuing criminal enterprises and terrorist organizations will not benefit from the bill's protections. The bill also clarifies language that the Department of Justice had previously criticized as ambiguous. The bill also makes clear in its findings that its prohibition on informal privilege waiver demands is far from unprecedented. The bill states: ``Congress recognized that law enforcement can effectively investigate without attorney-client privileged information when it banned Attorney General demands for privileged materials in the Racketeer Influenced and Corrupt Organizations Act. See 18 U.S.C. Sec. 1968(c)(2).'' There is no need to wait to see how the McNulty memorandum will operate in practice. There is similarly no need to wait for another internal Department of Justice reform that will likely fall short and be the fifth policy in the last 10 years. Any such internal reform will not address the privilege waiver policies of other government agencies that refer matters to the Department of Justice and allow in through the window what isn't allowed through the door. As I said when I introduced S. 186, the right to counsel is too important to be passed over for prosecutorial convenience. It has been engrained in American jurisprudence since the 18th century when the Bill of Rights was adopted. The 6th Amendment is a fundamental right afforded to individuals charged with a crime and guarantees proper representation by counsel throughout a prosecution. However, the right to counsel is largely ineffective unless the confidential communications made by a client to his or her lawyer are protected by law. As the Supreme Court observed in Upjohn Co. v. United States, ``the attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.'' When the Upjohn Court affirmed that attorney-client privilege protections apply to corporate internal legal dialogue, the Court manifested in the law the importance of the attorney-client privilege in encouraging full and frank communication between attorneys and their clients, as well as the broader public interests the privilege serves in fostering the observance of law and the administration of justice. The Upjohn Court also made clear that the value of legal advice and advocacy depends on the lawyer having been fully informed by the client. In addition to the importance of the right to counsel, it is also fundamental that the Government has the burden of investigating and proving its own case. Privilege waiver tends to transfer this burden to the organization under investigation. As a former prosecutor, I am well aware of the enormous power and tools a prosecutor has at his or her disposal. The prosecutor has enough power without the coercive tools of the privilege waiver, whether that waiver policy is embodied in the Holder, Thompson, McCallum, McNulty--or a future Filip--memorandum. As in S. 186, this bill amends title 18 of the United States Code by adding a new section, Sec. 3014, that would prohibit any agent or attorney of the U.S. Government in any criminal or civil case to demand or request the disclosure of any communication protected by the attorney-client privilege or attorney work product. The bill would also prohibit government lawyers and agents from basing any charge or adverse treatment on whether an organization pays attorneys' fees for its employees or signs a joint defense agreement. This legislation is needed to ensure that basic protections of the attorney-client relationship are preserved in Federal prosecutions and investigations.

Mr. SPECTER

Mr. SPECTER. Madam President, in my capacity as ranking member on the Judiciary Committee, I did want to make very brief comments on the nominees who are pending for the district courts. First, G. Murray Snow for the U.S. District Court for the District of Arizona, a very well-qualified man: a bachelor's degree from Brigham Young University in 1984, magna cum laude; a Harry S. Truman scholar for Nevada, a noted scholarship--parenthetically, one which our older son Shanin had--Phi Kappa Phi; law degree, magna cum laude--a very distinguished academic and professional record. Similarly, William Thomas Lawrence for the U.S. District Court for the Southern District of Indiana has exemplary qualifications academically and professionally. I ask unanimous consent to have the resumes printed in the Record at the conclusion of my remarks.

Mr. SPECTER. One additional addendum. I thank the chairman of the committee and the majority leader for moving ahead with three confirmations earlier this week, and these two confirmations. Again I renew my request that we be able to move to a situation where we will avoid blocking judges, where we will proceed on up-and-down votes and we will not seek to hold vacancies in judicial nomination situations where there are judicial emergencies--for example, in the Fourth Circuit with the nomination of Judge Conrad pending from North Carolina--and that we will move ahead with the nomination of others who have been waiting for very long periods of time. Today, the Judiciary Committee took up a report by the Inspector General, in which he noted that there had been political considerations in hiring at the Department of Justice. The report singled out Peter Keisler, who had been acting Attorney General and Assistant Attorney General in the Civil Division, and commended him for calling the inappropriate conduct for what it was. I mention Peter Keisler because he is so well qualified for the DC Circuit vacancy to which he has been nominated. It will be my expectation that these two nominations would move through smoothly. They were accepted on a voice vote in the Judiciary Committee, and it is my hope that we will use this to move ahead on the confirmations of Federal judges on a yes-or-no vote. Exhibit 1 William Thomas Lawrence--United States District Judge for the Southern District of Indiana Birth: 1947; Indianapolis, Indiana. Legal Residence: Indianapolis, Indiana. Education: Louisiana State University, 1965-1968; no degree received; B.S., Indiana University, 1970; J.D., Indiana University School of Law--Indianapolis, 1973. Primary Employment: Attorney, Poore, Popcheff, Wurster, Sullivan & Burke, 1973-1976; Attorney, Popcheff, Lawrence & Page, 1976-1979; Public Defender (Part-time), Marion County Superior Court, Criminal Division 4, 1974-1983; Attorney, Lawrence, Carter, Gresk, Leerkamp & Walsh, 1979-1989; Attorney, Johnson, Smith, Pence, Densborn, Wright & Heath, 1989-1997; Master Commissioner (Part-time), Marion County Circuit Court, 1983-1997; Presiding Judge, Marion County Circuit Court, 1997-2002; Magistrate Judge, U.S. District Court for the Southern District of Indiana, 2002-Present. Selected Activities: Indiana Bar, 1973-Present; Indianapolis Bar Association, 1973-Present--Distinguished Fellow, 1997, Chairman, Bench Bar Conference, 2002, Chairman, Judicial Section of the Association, 2004, Chairman, Continuing Legal Education Commission, 2002, Vice-President, 2005, Board of Managers, 2005, Executive Committee, Litigation Section, 2004-2005; Seventh Circuit Bar Association, 2002-Present; Federal Bar Association, 2002- Present; Indiana Judges Association, 1997-2002, Board of Managers, 2000-2002; Board of Directors, Judicial Conference of Indiana, 1997-2002; United States Magistrate Judges Association, 2002-Present; Board of Directors, Marion County Justice Agency, 1996-2002; Member, Indiana State Forensic Science Commission, 1984-1990; Executive Director, Indiana Merit Selection Commission on Federal Judicial Appointments, 1980-1986. ABA Rating: Substantial Majority ``Well Qualified,'' Minority ``Qualified.''

Mr. SPECTER

Mr. SPECTER. Mr. President, I seek recognition today to introduce the Attorney-Client Privilege Protection Act of 2008, which is a modified version of my earlier legislation by the same name. This legislation, which adds original cosponsors, continues to address the Department of Justice's corporate prosecution guidelines. Those guidelines, last revised by former Deputy Attorney General Paul McNulty in December 2006, erode the attorney-client relationship by allowing prosecutors to request privileged information backed by the hammer of prosecution if the request is denied. Like my previous bill, S. 186, this bill will protect the sanctity of the attorney-client relationship by prohibiting federal prosecutors and investigators from requesting waiver of attorney-client privilege and attorney work product protections in corporate investigations. The bill would similarly prohibit the government from conditioning charging decisions or any adverse treatment on an organization's payment of employee legal fees, invocation of the attorney-client privilege, or agreement to a joint defense agreement. The new version of the bill makes many subtle improvements, including defining ``organization'' to make clear that continuing criminal enterprises and terrorist organizations will not benefit from the bill's protections. The bill also clarifies language that the Department of Justice had previously criticized as ambiguous. The bill also makes clear in its findings that its prohibition on informal privilege waiver demands is far from unprecedented. The bill states: ``Congress recognized that law enforcement can effectively investigate without attorney-client privileged information when it banned Attorney General demands for privileged materials in the Racketeer Influenced and Corrupt Organizations Act. See 18 U.S.C. Sec. 1968(c)(2).'' There is no need to wait to see how the McNulty memorandum will operate in practice. There is similarly no need to wait for another internal Department of Justice reform that will likely fall short and be the fifth policy in the last 10 years. Any such internal reform will not address the privilege waiver policies of other government agencies that refer matters to the Department of Justice and allow in through the window what isn't allowed through the door. As I said when I introduced S. 186, the right to counsel is too important to be passed over for prosecutorial convenience. It has been engrained in American jurisprudence since the 18th century when the Bill of Rights was adopted. The 6th Amendment is a fundamental right afforded to individuals charged with a crime and guarantees proper representation by counsel throughout a prosecution. However, the right to counsel is largely ineffective unless the confidential communications made by a client to his or her lawyer are protected by law. As the Supreme Court observed in Upjohn Co. v. United States, ``the attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.'' When the Upjohn Court affirmed that attorney-client privilege protections apply to corporate internal legal dialogue, the Court manifested in the law the importance of the attorney-client privilege in encouraging full and frank communication between attorneys and their clients, as well as the broader public interests the privilege serves in fostering the observance of law and the administration of justice. The Upjohn Court also made clear that the value of legal advice and advocacy depends on the lawyer having been fully informed by the client. In addition to the importance of the right to counsel, it is also fundamental that the Government has the burden of investigating and proving its own case. Privilege waiver tends to transfer this burden to the organization under investigation. As a former prosecutor, I am well aware of the enormous power and tools a prosecutor has at his or her disposal. The prosecutor has enough power without the coercive tools of the privilege waiver, whether that waiver policy is embodied in the Holder, Thompson, McCallum, McNulty--or a future Filip--memorandum. As in S. 186, this bill amends title 18 of the United States Code by adding a new section, Sec. 3014, that would prohibit any agent or attorney of the U.S. Government in any criminal or civil case to demand or request the disclosure of any communication protected by the attorney-client privilege or attorney work product. The bill would also prohibit government lawyers and agents from basing any charge or adverse treatment on whether an organization pays attorneys' fees for its employees or signs a joint defense agreement. This legislation is needed to ensure that basic protections of the attorney-client relationship are preserved in Federal prosecutions and investigations.

Mr. SPECTER

Mr. SPECTER. Mr. President, we are moving forward today on the votes for confirmation of three Federal judges. Among the many very heavy responsibilities of the Senate, the confirmation process ranks very high. Under our system of government, we give to the judicial branch the responsibility of interpreting the Constitution and establishing the rule of law. That has broad implications. It means the courts render decisions where one citizen has a claim against another, which goes to court. It means a claim when the government and a citizen have a controversy which is to be settled by an impartial judicial arbitrator. It also involves some of the historic constitutional confrontations, one of which we will have later this week on the Foreign Intelligence Surveillance Act. Where does the Article II power of the President end as Commander in Chief, and where does the Article I power of the Congress of the United States establish itself under Article I? It is a very, very high calling. When the framers adopted the Constitution, Article I was given to the Congress. Article II to the executive branch and Article III to the judicial branch. Later, Chief Justice Marshall, in effect, rewrote the order of priority. I think if the Constitution were to be rewritten today, the judicial branch would be No. 1, because the judicial branch has taken over the responsibility, for a variety of reasons, for deciding all of the cutting edge questions. We have had a great deal of focus of attention on the confirmation process. This attention usually happens when Supreme Court nominations are involved. Then, in the major committee hearing rooms, Senators are all at their desks. There are not too many Senators at their desks here today. In fact, I don't see anybody at their desk here today, except for the Presiding Officer, which is not exactly his desk. It is the vice president's desk. But, Senator Lautenberg from New Jersey looks comfortable in the position. We have had, during the confirmation process of Chief Justice Roberts and Associate Justice Alito, seen the Senate at its best--avoiding the controversy, avoiding the partisanship, and moving forward in dignified hearings. As I have said before--and it is worth repeating--I compliment the distinguished chairman of the Judiciary Committee for his courageous stand in voting for Chief Justice Roberts. Chief Justice Roberts was confirmed by a vote of 78 to 22. Counting the Independent vote with the Democrats, a majority of the Democrats voted in favor of Chief Justice Roberts, and it was a good, unifying symbol. We moved through that process where there had been some doubt as to how the Senate would perform, a doubt which was occasioned by the very bitter infighting, which characterized the Senate in 2003, 2004, and 2005, when we had the controversy with the filibuster by one side and the threat to invoke a new rule of cloture with the so-called constitutional or nuclear option. I have the pleasure of having my 14-year-old granddaughter with me this week. She just graduated from the eighth grade and is spending a week as an intern in the Senate. It may be a little early for the job. Her father spent 6 weeks with Senator Hugh Scott many years ago when he was 17. But, in going over the day's itinerary, I sought to explain to my granddaughter, Silvia Specter, what a confirmation is. She is watching, with more interest, the activities of the Senate today because she is onboard. It is my hope, with agreements which have been reached here today to move ahead with the confirmation of three Federal judges today and two more on Thursday, that perhaps we will see a return to at least some basic level of comity in the Senate. We have moved a considerable distance from the tradition of confirmation of Federal judges where, in times gone by, there was merely a review of academic standing, professional standing, and trial practice; now, we go into much more detail of the ideology and philosophy of the nominees. That change has led to some deep concerns over the so-called cultural wars which have, candidly, muddied the waters. However, it is my hope that in the time that remains in the 110th Congress, we will move ahead with the confirmation of judges on up-and-down votes. The three nominees we are considering today have come to the floor as a result of an arrangement worked out by the leadership on both sides. Originally, there had been a commitment to have these confirmations occur before Memorial Day. When I say ``commitment,'' let me modify that slightly to ``best efforts.'' When the nominees were selected, there was concern on the part of the Republican side of the aisle that there was insufficient time to take up the nomination of appellate court Judge Helene White to be a judge of the Sixth Circuit. I will ask unanimous consent that the full text of my statement on Judge White's nomination be printed in the Record at the conclusion of my remarks. By including my statement, I can abbreviate my comments now. In my statement, I note that there were only 22 days between Judge White's nomination and hearing, and there was not an opportunity to get into the details of her record, which is a matter not just of procedure, not just of form, but of real substance in terms of the committee's ability to evaluate Judge White. I shall talk about that specifically, in terms of her qualifications and in terms of specific cases which she has decided. The context of the mere 22 days to evaluate her nomination is further illuminated by the fact that there were so many other nominees who had been on the agenda for much longer. A very distinguished lawyer, Peter Keisler, a man who has been praised on the editorial pages, had been waiting for 726 days for a committee vote on his nomination to Circuit Court for the District of Columbia. It is not too often that judicial nominees are praised on the editorial pages, but Peter Keisler has been. A judge in North Carolina, District Court Judge Robert Conrad, who is up for a seat on the Fourth Circuit, has been waiting for a hearing for 343 days. A man named Steve Matthews, also for a seat on the Fourth Circuit, has been waiting for a hearing for 292 days. It seemed to my Republican colleagues and me that where you had a commitment for confirmations by Memorial Day, and you had people who had been waiting around for this length of time and we were in a position to evaluate them, that they should have been the ones to be considered. But, the majority leader chose otherwise, and now we have before us the nomination of Judge White for a position on the Sixth Circuit. The status of a circuit judge is extremely important in our judicial hierarchy because the circuit court--for those who are not familiar with the details of Federal procedure--is the appellate court right above the U.S. District Court, which is the federal trial court. When appeals are taken, or, more specifically, a petition for a writ of certiorari is applied for to the Supreme Court of the United States, it is a discretionary matter whether the Supreme Court takes the case. Most of those applications are not heard--the U.S. Supreme Court takes very few cases from the court of appeals. So, when a three-judge panel sits in a circuit court, that is it. Now, sometimes there will be a decision by the circuit court en banc, when the full circuit court will decide, but customarily the decision is only rendered by the three- judge panel, and many decisions are two to one. One case which illustrates the importance of the circuit court, and especially the Court of Appeals for the Sixth Circuit, was the decision on the constitutionality of the Terrorist Surveillance Program, the program put into effect by the President on warrantless wiretaps. These wiretaps went on for a long time before they were disclosed--a violation of the National Security Act of 1947, which requires the President to inform the Intelligence Committees of such proceedings, and a violation of the Foreign Intelligence Surveillance Act of 1978. The President has responded to the law that Article II powers are not affected by statute, but that is a matter for judicial decision. A Federal court in Detroit declared the Terrorist Surveillance Program unconstitutional. The case was appealed to the Sixth Circuit, and on a two-to-one decision, the Sixth Circuit decided the plaintiffs did not have standing. That is a complicated legal procedure, which I will not take time to discuss today, but, in short, they do not have a right to challenge it because they are not sufficiently affected by it. There was a dissent in that Sixth Circuit decision. Then, the Supreme Court of the United States denied certiorari--a decision which I thought was unfortunate. When you have a major constitutional confrontation between the Congress and the President--the most dominant confrontation of this era--it seems to me the Supreme Court of the United States ought to decide the issue and, candidly, not look for a way to duck it. The doctrine of standing has sufficient flexibility, as illustrated by the dissent in the Sixth Circuit, that the Court could have taken the case. There is a lot of flexibility when the court deals with issues such as standing. Coming back to the point, one judge of the Sixth Circuit made the difference. So, when you have a nominee to the Sixth Circuit Court of Appeals, or any court of appeals, it is an important decision. Going back to the topic at hand, we had the hearing on Judge Helene White, and we had it in a very hurried fashion. We did not have the rating of the American Bar Association, and, regrettably, we did not have all the materials that should have been available to the committee. When judges write opinions, a good many of them are what are called unpublished. For those who do not know the legal procedures, there are published opinions, which are bound in volumes that are used for precedents. But, the courts make a distinction on what is published and what is unpublished, and a good many of Judge White's opinions were unpublished and reversed, and we never were able to get them. I asked Judge White at the hearing about a number of her cases because my own sense is to get involved in the specifics. In evaluating judges and evaluating lawyers on their legal skills, it is very revealing to see what they have decided. Perhaps even more revealing than what they have decided is the way they have reasoned through the decision. My questions about her cases were not designed to be so- called ``gotcha'' questions. All the cases I used for questioning were specifically listed on Judge White's Senate questionnaire that she provided to the committee on April 25, just 12 days prior to her hearing. I thought she would at least be familiar with these cases. One of the cases I questioned Judge White on was captioned People v. Santiago. In that case, Judge White dissented from her colleagues' opinion, where her colleagues--two other judges--upheld a jury conviction of a defendant for first-degree felony murder and armed robbery. Judge White would have reversed the sentence. In this case, the defendant had driven the other two defendants to the house where the robbery and murder were committed, knowing that the defendants intended to rob and likely kill the victim--a classic example of aiding and abetting. It is a basic, fundamental rule of criminal law that an accomplice in a getaway car is a part of the conspiracy to rob and is responsible for the consequences of a felony murder which follows--very basic fundamental law. I asked Judge White why she did not agree with her colleagues that the defendant was guilty of aiding and abetting. She could not explain why her decision deviated from the legal standards. I asked her specifically if it was ``standard, clear-cut law that when somebody drives a codefendant to a place where there is a robbery and a murder, that kind of assistance constitutes guilt on the part of the coconspirator, accessory before the fact?'' She commented, unresponsively, that she ``went to law school in Pennsylvania,'' but then continued that ``in Michigan, to be responsible for the principal offense, one has to either share the intent to commit the principal offense or provide aid and support with knowledge that the principal offense was going to be committed.'' Given that acknowledgment, I again asked her why she came to a contrary conclusion. I asked her if she stood by her decision, even though her two colleagues who participated in the case with her on the Michigan Court of Appeals disagreed and the Supreme Court had denied appeal, and she responded that she stood by her original judgment, without providing any legal reasoning to justify that conclusion. I asked Judge White about another case, captioned People v. Ryan. She participated in the decision affirming the dismissal of a drug dealer's conviction. The conviction had been reversed. The circumstances were that the defendant was arrested by Federal agents but was charged and convicted in a state court. The defendant argued that the decision to pursue a state prosecution rather than a federal prosecution was vindictive. The panel on which Judge White sat found that the trial court's determination that there was vindictive conduct was not clearly erroneous. The Supreme Court reversed stating: The mere threat to refer the case for State prosecution does not amount to objective evidence of hostile motive. The Supreme Court reversed the decision to which Judge White had been a party. I am sorry for the interruption. Anyone watching this debate on C- SPAN just saw a congenial exchange between the distinguished chairman and the ranking member of the Judiciary Committee. As a matter of fact, we have quite a few such exchanges. The evening is getting late and a lot of colleagues have a lot of commitments, and there has been a request by the majority that I abbreviate my comments. I think I can do that sensibly and will be delighted to do so.

Mr. SPECTER. No, Mr. President, I already have yielded.

Mr. SPECTER. Mr. President, I thank the distinguished chairman for his suggestion. It is almost 6 o'clock--a few minutes before--and I know people have a lot of engagements. I think the course he outlines is a solid one. I think we can handle the Senate's business in that way. As I said earlier, I will expedite my presentation and rely more on what I have in my statement for the Record. I do not think I am going to change a whole lot of votes in what I say, but I do think it is important for the Senate to understand that voting against Judge Helene White is not a matter that is done lightly or without cause. There ought to be a statement as to why. Well, back to the case of People v. Ryan. Quite frequently there is a Federal investigation and a State prosecution. It happens all the time. It was very commonplace when I was district attorney of Philadelphia. That scenario is certainly not the basis for saying it is vindictive or out of order. For one reason or another, it is better suited to pursue the State court. If a State law is violated, you can do it that way. Judge White was wrong, as determined by the appellate court. There is one other case on which I wish to comment. There is a case called People v. Thomas, which is in the Record and which I will incorporate by reference to save some time; however, I do want to specify the case of People v. Hansford, which was an opinion reversed on appeal by the Michigan Supreme Court and was a third case she had summarized in her questionnaire prior to her hearing. After reading to Judge White in the hearing the defendant's extensive criminal record, which included several counts of larceny and attempted larceny, receiving and concealing stolen property, fleeing and alluding, and violations of probation, I noted that habitual offender statutes are designed to take habitual offenders off the streets. I asked what her reasoning was for determining that a man with an extensive criminal record such as the defendant did not deserve to be off the streets for life. Once again, her response to my question was that she was not familiar with the case. She further stated that she ``accept[ed] the Supreme Court's decision . . . and accept[ed] that the sentence was appropriate . . . because the Supreme Court has said it is appropriate.'' I again asked her whether she thought her decision was correct in light of the Michigan Supreme Court's reversal, and she said: I have to have been wrong . . . The Supreme Court reversed. I was wrong. The Supreme Court reversed. Well, that is, in my legal opinion, totally insufficient for a nominee to respond in that way to a very important question such as that. You have habitual offender statutes which are designed to take career criminals off the streets. When you have three or more convictions for violent offenses, it has been determined that the criminals ought to have life sentences. Based on the experience I had as district attorney dealing with these cases, I authored the Armed Career Criminal bill, which created a federal life sentence for serious repeat offenders convicted of three or more major felonies. The fundamental part of the criminal law is to protect society. Recidivists commit 70 percent of the crimes so if there is a habitual offender who commits repeat crimes, they ought to be taken off the streets. Here there was one, and the Supreme Court of Michigan said the treatment should have been for a habitual offender. Judge White didn't treat it that way, and she didn't have any justification for why she didn't treat it that way, and she didn't explain the logic of her reasoning. As delineated in the very extensive floor statement, which I have already had printed in the Record, we were not given a great many of Judge White's opinions. It was very difficult--really impossible--to calculate her reversal rate when we didn't have those opinions. Based on the opinions we have, her reversal rate was in excess of 6 percent, much higher than Judge Robert Conrad's reversal rate--2 cases out of 175, or about 1 percent. The national average is at 8.6 percent; however, Judge Boyle from North Carolina, who was rejected by the Democrats based on his high reversal rate, had a reversal rate which was lower than Judge White's. And I repeat, we still don't know what her reversal rate is. We don't know what her reversal rate is because we had a great many unpublished opinions that were reversed on appeal that we did not have an opportunity to examine because they were not provided to us. Just a couple of comments in conclusion. It is my hope that we will yet return to some basic comity and have a respectable number of confirmations of Federal judges this year. The statistics show that President Clinton had a significantly larger number of circuit judges and district court judges confirmed than President Bush has had in the last 2 years. Further, President Clinton's overall confirmation numbers are higher than President Bush's. President Clinton had 65 circuit judges and 305 district court judges confirmed, while President Bush has had only 59 circuit judges and 244 district judges confirmed. We have heard several discussions about the so-called ``Thurmond rule''-- that is a rule which has been commented upon which, when analyzed, has no real substance. During President Clinton's Administration, Chairman Leahy commented that the so-called ``Thurmond rule'' was a ``myth,'' and then he proceeded to specify a great many judges who had been confirmed late in past Presidents' terms. Upon examination, we find that the facts are that in the last 2 years of Presidents' terms, there have been many judicial confirmations. In 1988, President Reagan's last year in office, the Senate confirmed 7 circuit nominees and 33 district court nominees. In 1992, President George H.W. Bush's last year, the Senate confirmed 11 circuit nominees and 53 district court nominees. In 2000, President Clinton's last year in office, the Senate confirmed 8 circuit nominees and 31 district court nominees. The Thurmond rule allegedly arose when the issue about the confirmation of judicial nominees came up near the end of President Carter's term in office. But, an examination of the facts shows that nominations were not being blocked. In fact, by today's standards, the end of President Carter's term was a rather remarkable situation. President Carter nominated Steven Breyer to be a court of appeals judge for the First Circuit on November 13, 1980, after President Carter had lost the election to President Reagan. We talk about the fights over circuit judges now. The election was gone. We had a new President. But, the Senate confirmed Steven Breyer to the First Circuit, and history shows that he later became a U.S. Supreme Court Justice. We have had some very troubled times on this Senate floor, and that kind of infighting and partisanship is something which does not add to the luster of the Senate as the world's greatest deliberative body. We have seen very bitter disputes on this Senate floor. The Republican majority, in my opinion, did not act properly on President Clinton's nominees when the Republicans controlled the Senate and the President was a Democrat. I said so on the floor at that time and voted for President Clinton's qualified nominees. When we had the battle over filibuster versus the so-called nuclear constitutional option, the tradition of this body was strained to the utmost, and we dodged that bullet or cannon or nuclear bomb. So, it is my hope that Senator Leahy and I can take the lead, as we have in the past. He is the chairman; I am the ranking member. The roles have been reversed. We have a lot of role reversals around here. When Pat Leahy and Arlen Specter passed the gavel, it was a seamless passing of the gavel. We are not going to filibuster Judge White. I am going to vote against her for the reasons I have given here, and more detailed in my statement. I have not campaigned against her. I think the matter is up for every individual Senator to judge. My expectation is that she will be confirmed. I think there may well be a fair number of votes against her, but I haven't counted the votes. But, I think the important thing is that we have an up-and-down vote, and that we not have a filibuster. We have waiting in the wings the judge from North Carolina, Judge Conrad, and the man from South Carolina, also nominated to the Fourth Circuit. I hope we move on these nominees. I also have written to my colleagues who are not returning blue slips on nominees from New Jersey and from Maryland and from Rhode Island. I have talked to them and urged them to return their blue slips, urging that we not maintain vacancies in anticipation of the election results. But, essentially, it is my hope that we can move ahead in a way that is in the tradition of the Senate and to discharge our constitutional responsibilities with up-or-down votes. Mr. President, I now ask unanimous consent that my full statement be printed in the Record.

Mr. SPECTER. My final comment, if I may make it while the chairman is on the floor, is that we do have some other Senators who wish to speak. Well, I have just been advised that we don't have Senators who wish to speak. Apparently, Senator Leahy, your comments about an early conclusion were much more persuasive than mine.

Mr. SPECTER. Mr. President, that is acceptable to this side of the aisle. I think it is an illustration of how the Senate can conduct its business in an expeditious way. We started on a 4-hour time agreement at 5:15. We are 54 minutes into the 4 hours, and we will conclude with a 2-hour-and-45-minute savings. Let this be an example for the balance of the confirmation process and other Senate work. I yield the floor.

Mr. SPECTER

Mr. SPECTER. Mr. President, I now ask consent that my next remarks be labeled nomination of Michael E. O'Neill for the United States District Court for the District of Columbia.

Mr. SPECTER. I am pleased to submit my very strong recommendation to my colleagues to confirm the nomination of Michael E. O'Neill for the District Court for the District of Columbia. The President submitted his name last Thursday. I had tried to come to the floor to speak at that time but could not do so. I am pleased to do so now. Michael O'Neill has an extraordinary record. He graduated summa cum laude from Brigham Young University and received his law degree from Yale Law School. He was editor of the Articles and Book Reviews of the Yale Law Journal; and Articles Editor of the Yale Journal on Regulation. He served as a law clerk to Judge David Sentelle and clerked for the Supreme Court of the United States for Justice Clarence Thomas. I ask unanimous consent that his full resume be included in the Record.

Mr. SPECTER. It is especially worthwhile to have Mr. O'Neill confirmed because of the example it sets for people who come to undertake public service. Mr. O'Neill served on the Judiciary Committee for a protracted period of time. When Senator Hatch was the Chairman, he was special counsel from 1994 to 1996 and general counsel from 1997 to 1998, before he became associate professor of law at George Mason University School of Law; and he served as chief counsel and staff director for the 2 years I served as Chairman of the Judiciary Committee. I do not need a resume to tell people how competent he is and how public spirited he is and what an outstanding Federal judge he would make. There have been quite a number of situations where people working on the Judiciary Committee have gone on to Federal judgeships. I think it is a very healthy thing to have that as a motivation to come for public service. People have come to serve on the Judiciary Committee, leaving jobs making half a million dollars or more for $100,000. The public service is so important that it is exemplary to give them this recognition to motivate our people to come to take these jobs. One example I would note is Stephen Breyer, who was special counsel and chief counsel to the Senate Judiciary Committee back in 1980 for then-Chairman Ted Kennedy. Mr. Breyer was then appointed on the First Circuit and is now on the Supreme Court of the United States. I ask unanimous consent that this table be included in the Record showing the movement of people who have served on the Judiciary Committee and the jobs which they have taken in other Federal positions.

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

Mr. SPECTER

Mr. SPECTER. Mr. President, I ask unanimous consent that further proceedings under the quorum call be rescinded.

Mr. SPECTER. Mr. President, I have sought recognition to address the issues on legislation which is coming from the House of Representatives amending the Foreign Intelligence Surveillance Act. The issues on which the Senate will vote on the House bill involve very fundamental questions of constitutional rights versus the war on terrorism. We have legislation which has come from the House of Representatives which would grant retroactive immunity to the telephone companies on a showing that the companies receive written requests from the Government saying the program was legal. At the outset, I recognize the telephone companies as good citizens. But the test of whether what has been done is legal is not determined by the assertion by the Government to the telephone companies that the program is legal. That determination can only be made by the courts on evaluation of congressional authority under article I, which has been exercised in the Foreign Intelligence Surveillance Act of 1978, since amended, contrasted with the President's article II powers as Commander in Chief. That test has not been waived. I submit the historians will look back upon the period of time from 9/11 to the present and beyond as the greatest expansion of executive authority in the history of the country. I believe additional law enforcement tools were necessary. In my capacity as the chairman of the Judiciary Committee, I led the fight for the PATRIOT Act re- authorization on this floor to give law enforcement broader power. But, at the same time, I have expressed my deep concern that there be a determination by the courts as to whether the warrantless wiretapping is valid under the Constitution. We have seen great stress laid upon the provision in the House measure that the exclusive means for wiretapping will be provided by the statute. But that does not stop the President from asserting his authority under article II of the Constitution. The Foreign Intelligence Surveillance Act of 1978 has a similar provision of exclusivity, but that did not stop the President from initiating the Terrorist Surveillance Program which was kept secret for years from the Congress. The President has a sound constitutional argument that you cannot amend the Constitution by statute; you cannot take away the President's constitutional authority by a statute, but it is up to the courts to strike the balance and to make that determination. Regrettably, Congress and the efforts which we have made have, I submit, been totally insufficient. We have had the so-called signing statements as an expansion of executive authority, and Congress has been unable to assert its authority under the Constitution on the legislation we send to the President. The Constitution is plain. Each House passes legislation. There is a conference report, and it is sent to the President and presented. Then the President has the option of either signing or vetoing. But a practice has arisen in the past, very extensively used by this administration, to put in signing statements which are at material variance--that really directly contradict what is in the legislation. There may be some justification for a signing statement on some minor matters on an administrative level, but in my formal statement I go into a couple of examples on a controversy on enhanced interrogation, or so-called torture, which passed the Senate 90 to 9. In a celebrated meeting between Senator McCain and President Bush, they reached a compromise. Then when the legislation went to the President, the President issued a signing statement saying that he had the authority to disregard it under his powers as Commander in Chief, article II authority. In a similar vein on the PATRIOT Act re-authorization, we put in restrictions on what the law enforcement officials could do, negotiated with the administration, signed into law by the President, and again a statement was made that if the President chose to exercise his constitutional authority, article II power, he felt free to do so. I introduced legislation to give the Congress standing to go to court to challenge these signing statements. The legislation has not gotten very far because of the impossibility of overriding a veto and because of the concern as to whether the constitutional standard of the case and controversy would be met. So here we have the unfettered practice of these signing statements as an example of executive authority. Second, the Supreme Court review of the Terrorist Surveillance Program and habeas corpus has been inadequate. In the Detroit case, the Federal court finding the Terrorist Surveillance Program unconstitutional was appealed to the Sixth Circuit. After lengthy delays, the Sixth Circuit reversed the Detroit Federal court on the grounds of lack of standing. Then, again, after months of delay, the case went to the Supreme Court of the United States which, again, denied certiorari. The issue of standing has sufficient flexibility, as demonstrated by the dissent in the Sixth Circuit, that the Supreme Court could have taken up the issue. The question on the Terrorist Surveillance Program presents the sharpest conflict of our era on the clash between the President's authority under article II as Commander in Chief and the authority of Congress to enact statutes, as we did under the Foreign Intelligence Surveillance Act of 1978. Similarly, on habeas corpus, notwithstanding the Rasul decision, the Court of Appeals for the District of Columbia in Boumediene essentially disregarded the holding of the Supreme Court in Rasul when the Circuit Court for the District of Columbia said the decision by the Supreme Court turned on a statutory interpretation. Habeas corpus is provided for in two ways under our law: No. 1, it is descended from the Great Writ, the Magna Carta, of 1215, and it is embodied in our constitutional law as made plain by Justice Stevens in Rasul. And there is also a statutory provision for habeas corpus. In the Military Commissions Act, the Congress modified the statutory provision, and the Court of Appeals for the District of Columbia saw fit to say that once the statute was changed, habeas corpus didn't apply--really flying in the face of what the holding was in Rasul. Finally, a protracted period of time later, in Boumediene, the Supreme Court reinstated habeas corpus as it was bound to do based upon the clear holding of Rasul and the long history of the issue. Congress has similarly been ineffective in curtailing executive authority in the National Security Act of 1947, which requires the President to notify the intelligence committees of both the House and Senate, and for protracted periods of time the executive branch ignored that requirement. Only when the confirmation of General Hayden as Director of CIA came up was there some compliance with that requirement. The Judiciary Committee, during my tenure as chair, sought to bring in the telephone companies, sought to issue subpoenas to find out what the telephone companies were undertaking. On that situation, as I have said on the floor of the Senate, Vice President Cheney personally went behind my back to talk to Republican members of the Judiciary Committee without talking to me at any stage. That effort was made because the telephone companies, unlike the executive branch, unlike the President--the telephone companies do not have executive privilege. Similarly, the Senate defeated my amendment on the Foreign Intelligence Surveillance Act which would have substituted the Government for the telephone companies as the parties defendant. There was a way that the telephone companies could have been recognized for their good citizenship and held harmless by having the Government step into their shoes. But that amendment was defeated. I submit the case for this determination has a very important dimension beyond the customary doctrine of separation of powers because we are asked to give retroactive immunity to something while we don't even know on the record the full import of what is involved. The warrantless wiretapping, the data mining by the telephone companies is known only to some Members of Congress. It is not known to the public. I intend to offer an amendment which will require that the district court--the House bill now lodges jurisdiction in the district court to make the determination on the legality of FISA--my amendment will call for the district court to make the determination as to whether what has been done by the telephone companies is constitutional. The ultimate vote on this matter is a tough one. There are quite a number of provisions in the House bill which are protective of civil liberties. I have detailed them in my formal written statement. So when I come to a balance as to voting for the bill or not, my inclination is to vote in favor of the bill because of the importance of the ongoing activities of the telephone companies, notwithstanding my deep concern for civil rights. But there is a much better alternative, and that much better alternative would have been to have substituted the Government for the telephone companies as the party defendant or, now, to submit the question of constitutionality to the district court. My vote was misunderstood on the Military Commissions Act. When I had led the fight to retain habeas corpus in that bill, it was defeated 51 to 48--but we later voted for the bill because of its recognition of the applicability of the Geneva Conventions and other important parts of the bill. I said at the time that because of the severability clause, the Supreme Court of the United States would reinstate habeas corpus--which, of course, in the past couple of weeks, we know the Supreme Court has done. We are dealing here, essentially, with very subtle and very nuanced provisions. There are very tough judgments to be made in the legislative context. The war on terrorism is still on the front burner. We do not know what is going to come next. So that any time there is a balance as to what we ought to do, because of the value which I think is present from this data-mining and the work done by the telephone companies, I think it ought to be maintained. But where we have an option of doing it in a constitutional way, either by sunshine or by submitting it to the court, that is the preferable course of conduct. I ask unanimous consent that the full text of a detailed statement summarizing my position and a draft amendment be printed in the Record so my colleagues will have an opportunity to review both my written statement and my oral presentation of the proposal for an amendment which I intend to offer when the bill comes up.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to discuss my vote against cloture on the motion to proceed to H.R. 6049, the Energy and Job Creation Act of 2008. H.R. 6049 would revive important tax provisions that expired at the end of 2007 and extend provisions that are set to expire at the end of 2008. I support extension of the R&D tax credit, teacher expenses deduction, tuition deduction, accelerated depreciation for leasehold and restaurant improvements, the renewable energy tax incentives, and many other important provisions in this package. In addition, the bill includes a provision that I introduced, S. 814, which would allow attorneys to deduct reimbursable court costs and expenses in the same tax period in which they are paid or incurred. I strongly support this provision and have urged Chairman Baucus and Ranking Member Grassley to include it in this bill. While the House bill, H.R. 6049, does not address the alternative minimum tax, AMT, it is my understanding that a Baucus substitute amendment will include a 1-year AMT ``patch,'' without offsets, to prevent millions of additional taxpayers from being hit by the AMT as a result of bracket creep. I support the AMT ``patch'' so long as it is not used as an excuse to raise taxes elsewhere by adding offsets. The AMT revenues on millions of taxpayers were never intended to be collected. Despite the positive elements of this legislation, there are still significant issues that must be addressed. The main sticking point between Democrats and Republicans is whether temporary extensions of tax relief should be offset with permanent tax increases elsewhere. Following that process year-in and year-out means that permanent tax increases must be enacted so that taxpayers can maintain the current tax structure. On April 23, 2008, I, along with 40 other Republicans, wrote to Finance Chairman Baucus to support ``enacting a 2008 AMT patch and extending the various expiring tax provisions without offsetting tax increases.'' It would be my preference to see the tax extenders package passed without offsets. As it relates to the renewable energy tax incentives, it is difficult to understand why the House bill and the anticipated Baucus substitute would require offsets when the Senate has already spoken clearly on the issue. On April 10, 2008, the Senate voted 88 to 8 for an Ensign/ Cantwell amendment to the Foreclosure Prevention Act to extend the renewable energy tax incentives without offsets. Pennsylvania is among the leading producers of wind energy east of the Mississippi River. The thousands of Pennsylvanians employed in the alternative energy industry and those interested in clean, renewable sources of energy for their homes are looking to Congress to provide clarity and certainty on this issue. Without immediate action, it is widely believed that investments will decline significantly throughout the second half of 2008. On June 10, 2008, the Senate failed to invoke cloture on the motion to proceed to H.R. 6049 by a vote of 50 to 44. That vote, and the vote which occurred today 52 to 44, demonstrate that Senate Republicans need to be included in the process of drafting the bill. An open amendment process is important for this bill to proceed. Republican amendments must be allowed. However, an open process is threatened by the Majority Leader's standard operating procedure of ``filling the tree'' and filing cloture to cut off further amendments and debate. On May 21, 2008, the White House issued a Statement of Administration Policy which states that the President's senior advisers would recommend a Presidential veto of this bill in its current form. It is my hope that in light of today's vote, leadership on both sides will work quickly to bring up this bill in a bipartisan manner that will allow the Senate to work its will and pass legislation that can be quickly signed by the President.

Mr. SPECTER

Mr. SPECTER. Mr. President, this is a very important bill for reasons which I am discussing in this statement. I believe that it is vital for the Senate to take up this important measure to have open debate to give Senators an opportunity to offer amendments and to have the Senate work its will on these important questions. As noted in previous floor statements, I have been concerned about the majority leader's practice of employing a procedure known as filling the tree, which precludes Senators from offering amendments. That undercuts the basic tradition of the Senate to allow Senators to offer amendments. Regrettably, this has been a practice developed in the Senate by majority leaders on both sides of the aisle, so both Republicans and Democrats are to blame. I announced publicly at a Senate Judiciary Committee executive session this morning, June 12, 2208, that I would vote with Senator Baucus for cloture if I knew the majority leader would not fill the tree. In a telephone conversation this afternoon, June 12, 2008, Majority Leader Harry Reid advised me that he would not fill the tree. This will provide an opportunity for a full range of debate and decisions by the Senate on many important issues. On the Medicare bill specifically, S. 3101 has a number of issues which are important to Medicare beneficiaries in Pennsylvania and across the Nation. Foremost of those issues is the prevention of a 10.6-percent reduction in the Medicare reimbursement for physicians. A decrease of this size could result in doctors limiting the number of Medicare beneficiaries they take on as patients or refusing to take them on as patients at all. To resolve this grave problem, the legislation prevents the scheduled reduction, continues the current .5 percent increase for 2008, and provides an increase of 1.1 percent for 2009. This is a needed increase that will improve access to physicians for seniors. This legislation also contains an important provision to extend the section 508 wage index reclassification program. This program, established in the Medicare Modernization Act in 2003, provides important funding for hospitals that have been disadvantaged by Medicare's wage index reclassification. This is of particular importance in northeastern Pennsylvania where hospitals struggle to meet the wages needed to keep employees from commuting to other areas which have a higher reimbursement rate. This is an important extension; however, a permanent solution is needed to solve this problem for all hospitals. I am informed that the bill will include a delay in the Medicare durable medical equipment, DME, competitive bidding program. This is critical to western Pennsylvania, as it is one of the regions selected to begin the program. While competitive bidding can be productive in lowering the cost of medical equipment, the manner in which this program was implemented was unacceptable. During the competition for bids, half of the bids were disqualified, often for clerical problems. Further, the program is set to begin in just over 2 weeks and seniors have not been notified of these changes. This legislation will delay the implementation of this program to allow for the proper implementation of this program and correction of these problems. I am also informed that the bill will include a provision to increase Medicare payments to oncologists and other physicians for the cost of patient treatment. Physicians are facing shortfalls in their reimbursement, especially pertaining to cancer treatment. This provision will provide an accurate and up-to-date reimbursement for drug costs, ensuring cancer treatment will be accessible to Medicare beneficiaries. I am concerned about a change that this legislation makes in the ability of beneficiaries to purchase power wheelchairs. S. 3101 requires the rental of standard wheelchairs for 13 months instead of a physician determining if the beneficiary should purchase the equipment immediately. This provision removes the problem of purchasing wheelchairs for short term users but increases the cost 5 percent for the purchase after those 13 months. To insure that beneficiaries get the wheelchairs they need without overspending, a physician should be required to certify that a power wheelchair is needed for at least 13 months. I am confident as we consider this bill we can work out the differences we have and come to an agreement.

Mr. SPECTER

Mr. SPECTER. Mr. President, I ask unanimous consent to yield 1 minute to the Senator from Virginia.

Mr. SPECTER

Mr. SPECTER. Mr. President, I thank the distinguished Senator from New Mexico. I have sought recognition to state my reasons for opposing the motion to proceed to cloture because this bill has too many facets. It was my hope that the majority leader would have separated this bill into the component parts. I cannot support legislation which would impede exploration for oil, which is what part of this bill is. But there are parts of this bill which are very important, and they ought to be taken up separately--for example, the legislation that defines and establishes penalties for price gouging by the oil and gas industry. It increases regulation of oil futures markets, and it includes the provision to eliminate the antitrust exemption for OPEC countries. It does not have to be said on the floor of the Senate that enormously serious problems exist today with the price of oil and with the price of gasoline at the pump. The newspapers are full of it. It is an atrocious situation that is happening, and we desperately need relief. There are very substantial indicators that a good bit of this problem is caused by price gouging. The legislation ought to be separated out so that we act on that. There are significant indicators that the oil futures market is causing speculators to jack up the price of oil. There ought to be regulation on that. We ought to take it up separately. When it comes to the antitrust exemption for the OPEC countries, it is atrocious. A few of these countries get together in a room, they lower production, and that increases prices. That bill was passed by the Senate with 70 votes. It has been passed by the House of Representatives. We ought to be taking that up separately. If we took up these measures separately, we would have an opportunity to give some relief to the American people. Candidly, it is incomprehensible to me why we are not taking up the cost of oil and the cost of gas at the pump, to try to alleviate the pressure on the American people--and for that matter, worldwide. If we were to eliminate the OPEC antitrust exemption--to which they are not entitled; it is not a sovereign immunity issue, it is a commercial transaction--we have the authority to do that. One Federal judge has already upheld that approach. If we worked on the approach, if we worked on what the traders are doing on speculation, we would have some real effect. We are not too busy to take up this issue, aside from a few minutes on the Senate floor. There is no reason it has to be joined with what is obviously a poison pill, where you talk about acting against the oil and gas industry to discourage exploration. We know exploration is vitally necessary, so I cannot support this legislation in its present form, but it ought to be divided. We ought to take up the antitrust exemption separately. We ought to move ahead on a matter of pressing importance. There is nothing more important for the American people, for the people of the world. I urge the majority leader, who sets the schedule, to reconsider and separate these bill so we can act in a meaningful and important way.