Arlen Specter

Mr. SPECTER

Mr. SPECTER. Mr. President, I seek recognition today to introduce the Christopher Kangas Fallen Firefighter Apprentice Act, a bill designed to correct a flaw in the current definition of ``firefighter'' under the Public Safety Officer Benefits Act. On May 4, 2002, 14-year-old Christopher Kangas was struck by a car and killed while he was riding his bicycle in Brookhaven, PA. The local authorities later confirmed that Christopher was out on his bike that day for an important reason: Chris Kangas was a junior firefighter, and he was responding to a fire emergency. Under Pennsylvania law, 14- and 15-year-olds such as Christopher are permitted to serve as volunteer junior firefighters. While they are not allowed to operate heavy machinery or enter burning buildings, the law permits them to fill a number of important support roles, such as providing first aid. In addition, the junior firefighter program is an important recruitment tool for fire stations throughout the Commonwealth. In fact, prior to his death Christopher had received 58 hours of training that would have served him well when he graduated from the junior program. It is clear to me that Christopher Kangas was a firefighter killed in the line of duty. Were it not for his status as a junior firefighter and his prompt response to a fire alarm, Christopher would still be alive today. Indeed, the Brookhaven Fire Department, Brookhaven Borough, and the Commonwealth of Pennsylvania have all recognized Christopher as a fallen public safety officer and provided the appropriate death benefits to his family. Yet, while those closest to the tragedy have recognized Christopher as a fallen firefighter, the Federal Government has not. The U.S. Department of Justice, DOJ, determined that Christopher Kangas was not eligible for benefits because he was not acting within a narrow range of duties at the time of his death that are the measured criteria to be considered a ``firefighter,'' and therefore, was not a ``public safety officer'' for purposes of the Public Safety Officer Benefits Act. In order to be eligible for benefits under the Public Safety Officer Benefits Act, an officer's death must be considered the ``direct and proximate result of a personal injury sustained in the line of duty.'' Although the United States Code includes firefighters in the definition of ``public safety officer'' and specifies a firefighter as ``an individual serving as an officially-recognized or designated member of a legally-organized volunteer fire department;'' it offers no definition of ``line of duty''. DOJ had to defer to an arbitrarily narrow definition of ``line of duty,'' as described in the Code of Federal Regulations that restricts activities to the ``suppression of fires.'' DOJ decided that the only people who qualify as firefighters are those who play the starring role of operating a hose on a ladder or entering a burning building. According to this interpretation, those, such as junior firefighters, who play the essential supporting roles of directing traffic, performing first aid, or dispatching fire vehicles do not contribute to the act of suppressing the fire. Furthermore, Christopher's family has been pursuing this benefit through our court system. The U.S. Federal Claims Court ruled in favor of the Kangas family ordering the Department of Justice to pay $250,000. However, the Department appealed the decision which the Appeals Court for the Federal Circuit upheld by concluding the Court of Federal Claims' decision failed to defer to DOJ's interpretation of ``firefighter.'' Any firefighter will tell you that there are many important roles to play in fighting a fire beyond operating the hoses and ladders. Firefighting is a team effort, and everyone in the Brookhaven Fire Department viewed young Christopher as a full member of their team. As a result of this DOJ determination, Christopher's family cannot receive a $267,000 Federal line-of-duty benefit. In addition, Christopher is barred from taking his rightful place on the National Fallen Firefighters Memorial in Emmitsburg, MD. For a young man who dreamed of being a firefighter and gave his life rushing to a fire, keeping him off of the memorial is a grave injustice. The bill I introduce today will ensure that the Federal Government will recognize Christopher Kangas and others like him as firefighters. The bill clarifies that all firefighters will be recognized as such ``regardless of age, status as an apprentice or trainee, or duty restrictions imposed because of age or status as an apprentice or trainee.'' The bill applies retroactively back to May 4, 2002, the date of Christopher Kangas' death. I urge my colleagues to support this important legislation and I yield the floor.

Mr. SPECTER

Mr. SPECTER. I thank the distinguished chairman. Amendment No. 2599 I have sought recognition to speak briefly on the nomination of Judge Leslie Southwick to the Court of Appeals for the Fifth Circuit. I have spoken extensively about Judge Southwick in the past, but I do want to address a few remarks on the pending amendment offered by Senator McConnell and myself on the sense of the Senate that Judge Southwick ought to have an up-or-down vote on the floor of the Senate. It is my hope that we will proceed on judicial confirmations in a spirit of bipartisanship. Senator Leahy, chairman of the Judiciary Committee, and I have worked very closely on that in this Congress, as he and I did in the 109th Congress when I was chairman and he was ranking member. This body has seen some very controversial moments: in 2005, with filibusters against President Bush's nominees and the threat at that time to invoke the ``nuclear'' or ``constitutional option'' which would have brought the Senate to a standstill. We avoided that showdown and then worked harmoniously, in a dignified way, with Supreme Court nominations in 2005 and 2006. It is my hope we will find a way through on the Southwick nomination. I hope we do not have this vote degenerate back to a party-line vote without the kind of independent thought the Senate ought to exercise in evaluating the question which is whether Judge Southwick ought to have an up-or-down vote. Judge Southwick has an extraordinary record. I do not use that word lightly. He served on the Mississippi State appellate court for some 12 years. He has been a party to some 8,000 decisions. He has written 985 opinions himself. He is rated unanimously well qualified by the American Bar Association. He passed out of the Judiciary Committee, unanimously, for a district court judgeship. He has been an adjunct professor at a law school. He was clerk of the Court of Appeals for the Fifth Circuit, so he has experience there. In a very unusual way, in his fifties, he volunteered for the Judge Advocate General's Corps, volunteered to go to Iraq and served there in a heavy combat zone. I have had occasion to talk to him at great length, and he is a scholarly, intellectual, experienced lawyer, an experienced jurist. I have put into the Record detailed statements about many of his decisions where he has found in favor of the so-called little guy, finding in favor of people who have tort claims for injuries sustained, in favor of employees in employment cases. The only two situations which have been brought up in opposition to Judge Southwick are two cases where he concurred in an opinion, two opinions which he did not write. In one of the opinions, it was a custody case, and the court found in favor of the father. There was a reference to the ``homosexual lifestyle'' of the mother which is a term that is used with some frequency. I think there could be more discretion in that language, but the court found in favor of the father because of his community roots, because of the home he could provide for the child, and because of the father's income. The important thing about that case was its procedural posture. That was the sum and substance of that matter. There was a second case where the issue involved a racial slur which admittedly was reprehensible. It was said by an individual, a public employee, about a fellow worker who was not present at the time. The subject did not hear the slur. There was an immediate apology. There was no workplace disturbance. The issue then came before an administrative review board that found that although the comment was reprehensible, under these facts it was not sufficient to support termination of employment. That issue then came back before the appellate court on a very narrow question. The question was whether the decision by the administrative board was arbitrary and capricious, which is lawyer talk for whether there was any evidence to support the board's ruling. The court felt that there was evidence to support the conclusion that there was not sufficient grounds for firing. The case then went to the State Supreme Court, and the State Supreme Court remanded on the limited question about having more detailed factual findings. But the Supreme Court of Mississippi agreed that the incident was not sufficient to warrant a permanent firing. That is the sum and substance of the objections. When you look at the full record, you see that Judge Southwick ruled in a case where the trial judge had excluded evidence that the victim of a crime was gay, and Judge Southwick upheld the ruling that that would have been prejudicial, defense counsel should not have been permitted to ask that of a victim, seeking only to prejudice the jury. It did not having any bearing on the issue involved in the case. This supports the conclusion that Judge Southwick, in the custody case to which I referred, did not have any demonstrate traits or indications that he was biased or prejudiced or unjudicial in his approach to that particular issue. It is my hope we will take a careful look at Judge Southwick's record before casting votes. I understand there will be a tabling motion. We should look at the underlying merits. When we had the controversy in 2005, I urged my colleagues in the strongest terms to take a look at whether they thought individually filibusters were warranted against Priscilla Owen and Bill Pryor and Janice Rogers Brown. I asked my Republican colleagues to take a look on the merits as to whether it was warranted to talk about a ``nuclear'' or ``constitutional option.'' I make the same plea here today. Let's not be bound by a party-line vote, ignoring the merits. There have been comments on the floor today, as there have been in the past, about President Clinton's nominees being improperly treated. I agree with that today, and I agreed with that when it happened, and I crossed party lines. I have crossed party lines to vote for President Clinton's judicial nominees when they were qualified. I hope we will come in the Senate, take a look at the individuals, take a look at the merits, and not move for a party-line consideration, and not avoid a vote, to have the man bottled up in committee. That smacks of the days of Senator Jim Eastland, when the Judiciary Committee bottled matters and prevented the Senate from voting on them. I can understand there are some Senators who do not want a vote on Judge Southwick, but that is what we are here for. That is the pay grade--to vote. So I urge my colleagues to look at this matter on the merits. I hope we do not have our actions disintegrate to the kind of controversy we had a couple years ago, but that we can move beyond this to the kind of bipartisanship which Senator Leahy and I have been able to muster for the Judiciary Committee. I thank the Senator from Montana for allowing me to speak. I know the Senator from South Carolina, Mr. Lindsey Graham, has a few comments. I expect he will be very brief on the subject.

Mr. SPECTER

Mr. SPECTER. Mr. President, it continues to be my hope that there will be a consensus reached among Senators as to how to move forward in Iraq. This is indispensable if there is to be an accommodation between the President and Congress. I had hoped to make a floor statement on Iraq during the Senate's consideration of the DoD authorization bill, but the majority leader took that bill off the floor after there was only consideration of the Levin-Reed amendment. That action deprived the Senate of an opportunity to consider the Warner-Lugar and Salazar-Alexander amendments and perhaps other amendments which might have secured the requisite 60 votes to structure a new U.S. policy for Iraq. When a tally is made of the Senators who have voted for or cosponsored legislation aimed at altering or reevaluating U.S. policy in Iraq, the total is 62. When Senators are added who have made public statements critical of the President's policy, the number could possibly reach or exceed two-thirds of the Senate membership. A July 2007 vote, had it been successful, would have had no binding effect since the President already had sufficient funding to continue until September 30 and would need additional funding only in the next fiscal year, 2008, beginning October 1. The time for Congress to have asserted its constitutional power of the purse to withhold funding was this spring during consideration of supplemental funding for approximately $120 billion. On April 26, 2007, following a vote in the House of Representatives of 218-208, the Senate passed the conference report to H.R. 1591, the fiscal year 2007 Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq Accountability Appropriations Act on a vote of 51-46. However, because this bill contained target dates for withdrawal, on May 1, 2007, the President vetoed the bill. After the House failed to gather the two-thirds majority required to override the President's veto, on May 24, 2007, the Congress approved a bill, H.R. 2206, which did not include targeted dates for withdrawal and which was subsequently signed into law by President Bush on May 25, 2007, Public Law 110-28. When the Levin-Reed amendment was considered, it was a forgone conclusion that there were not anywhere near 60 votes to invoke cloture, let alone the 67 votes needed to override a veto. With the removal of the bill from the floor, the Senate was prevented from considering alternatives to the Levin-Reed proposal, and denied the opportunity to have a vote or votes to demonstrate dissatisfaction with the President's policy. This action deprived the Senate of an opportunity to craft a compromise around Warner-Lugar or Salazar-Alexander to get the 60 votes and put the president squarely on notice that funding in September was unlikely unless the President's policy showed significant progress. Perhaps the Levin-Reed proponents would have rejected the other amendments as being insufficiently forceful, but Senators never know for sure how they will ultimately vote until there is floor debate, careful analysis, informal discussions on the floor and corridors, and talk in the cloakroom. Much of the Senate's productive work occurs during quorum calls when Members hassle and jawbone on the issues. Since so many Senators demonstratively want a change, it was at least worth a try in daylight compared to the futile all-nighter. Of particular interest to me were the provisions of the Warner-Lugar proposal on having a contingency plan and redefining the mission. For three decades, Senators Lugar and Warner have served on the Foreign Relations Committee and Armed Services Committee, respectively, with both rising to chairman. Their combined tenures in the Senate are more than 60 years. To say these colleagues bring a significant amount of thought and authority to this debate is an understatement. Regrettably, we did not have the opportunity to debate and vote on their proposal. The Warner/Lugar amendment is an attempt to ensure that the U.S. is prepared to implement changes to U.S. policy following the September report, to be provided by General Petaeus and Ambassador Crocker, on the progress of the President's current strategy in Iraq. The Warner-Lugar amendment recognizes that conditions in Iraq have changed considerably since the initial invasion to topple Saddam Hussein's regime and States that the joint resolution passed by Congress in 2002 to authorize ``the use of the Armed Forces of the United States against Iraq'' requires ``review and revision.'' In addition, the amendment calls for enhanced U.S. diplomatic efforts to work with the Government of Iraq to establish a consistent diplomatic forum related to Iraq that is open to all parties in the Middle East. Because of the potential for the Warner-Lugar amendment to provide a basis for a Senate consensus, I am cosponsoring this amendment. As explained on the floor by Senator Lugar on July 13, 2007: The purpose of the forum would be to improve transparency of national interests so that neighboring states and other actors avoid missteps . . . Such a forum could facilitate more regular contact with Syria and Iran with less drama and rhetoric. The existence of a predictable and regular forum in the region would be especially important for dealing with refugee problems, regulating borders, exploring development initiatives, and preventing conflict between the Kurds and Turks. This type of planning and diplomatic engagement should be occurring today. I believe a vote confirming this could have led the President to do that. Prior to the 2002 U.S. invasion of Iraq, I publicly stated my concerns about the potential fallout from such an action. On February 13, 2002, I took to the Senate floor to express my belief that there should be a comprehensive analysis of the threat posed by Saddam Hussein and what an invasion would amount to in terms of U.S. casualties: We need to know, with some greater precision, the threat posed by Saddam Hussein with respect to weapons of mass destruction. There also has to be an analysis of what the costs would be, some appraisal in terms of casualties. Then there is the issue as to what happens after Saddam Hussein is toppled. As I stated on the Senate floor on December 6, 2006: It has been my view that had we known Saddam Hussein did not have weapons of mass destruction, we would not have gone into Iraq. Eight months after my February 13 statement, on October 7, 2002, I returned to the floor to express my concerns over the lack of a comprehensive plan for Iraq: What happens after Saddam Hussein is toppled has yet to be answered in real detail. What was the extent of Saddam Hussein's control over weapons of mass destruction? What would it cost by way of casualties to topple Saddam Hussein? What would be the consequence in Iraq? Who would govern after Saddam was toppled? What would happen in the region, the impact on the Arab world, and the impact on Israel? In previous briefings, I have sought the administration plan as to what will be done after Saddam Hussein is toppled, and I think that is an area where a great deal more thought needs to be given. The situation in Iraq would obviously be contentious, with disputes between the Sunnis and the Shi'ites, with the interests of the Kurds in an independent state, and it means a very long-term commitment by the United States. Five years later, we are in the midst of a highly controversial troop surge in Iraq. Following the announcement of the President's plan to surge, I met with President Bush on two occasions. Following these meetings I told the President directly that I could not support a troop surge. I also had extensive discussions on the President's plan with the highest ranking members of his national security team including Secretary of State Condoleezza Rice, National Security Adviser Stephen Hadley and Director of National Intelligence John Negroponte. I met with GEN David Petraeus on January 31, 2007, who has been confirmed as the United States' top commander in Iraq. Following these meetings, I was not convinced the administration possessed a comprehensive plan to deal with the situation in Iraq and too many uncertainties persisted to warrant my support for a surge of U.S. personnel. On February 5, 2007, I spoke on the Senate floor regarding the surge: On this state of the record, I cannot support an additional allocation of 21,500 troops because it is my judgment that would not be material or helpful in what is going on at the present time. This comes against the backdrop of extensive hearings in the Armed Services Committee and Foreign Relations Committee, and in the context of the military having given many estimates with many of those in key command position saying that no more troops are necessary. This comes with the Iraqi Prime Minister Maliki saying a variety of things but at some times saying he doesn't want any more troops. At this time, I have not seen a plan that sufficiently addresses a strategy for victory in Iraq. Various reports indicate military advisers differ on the impact of an increased troop level in Iraq. It is not clear what the surge will ultimately accomplish and if it will be successful. Nonetheless, there are indicators that mandate we create contingency plans and consider other options. The Iraqi Government has failed to deliver on prior pledges which makes me hesitant to think they have the ability to deliver on new ones. According to many measurements, progress in Iraq has been poor and the situation is deteriorating. What is clear is that any solution will necessarily include political compromises by Iraq's various sects as well as an emphasis on a regional dialogue--something for which the Iraq Study Group advocated. Another proposal offered by Senators Salazar and Alexander would have used the work of the Iraq Study Group, which was led by former Secretary of State James Baker and former Representative Lee Hamilton, as a guide for our policy in Iraq. This legislation garnered bipartisan support including five Republicans and seven Democrats. The amendment states that U.S. support should be conditioned on the Government of Iraq's political will and substantial progress towards national reconciliation, revision of de baathification laws, equitable sharing of Iraqi oil revenues, free and fair provincial elections and mechanisms to ensure the rights of woman and minorities. Like the Warner-Lugar proposal, this amendment calls for enhanced diplomatic efforts. Specifically, the measure calls for a new ``Diplomatic Offensive'' to deal with the problems in Iraq and the region; energize other countries to support reconciliation in Iraq; engage directly with the Governments of Iran and Syria to obtain their commitment to constructive policies towards Iraq and the region, encourage the holding of a conference in Baghdad of neighboring countries and convey to the Iraqi Government that continued American support is contingent upon substantial progress toward and assist in the achievement of the milestones. Because of the potential for the Salazar-Alexander amendment to provide a basis for a Senate consensus, I am cosponsoring this amendment. There is no inconsistency in cosponsoring both Warner-Lugar and Salazar-Alexander. They complement each other. Both the Warner-Lugar and Salazar-Alexander proposals address the issue of diplomacy in the region. I have consistently urged the administration to work with Iraq's neighbors, including Iran and Syria, in order to develop cooperative stabilization efforts. To that end, I have met with President Bashar Assad of Syria. I have met with Iran's Ambassadors to the United Nations, Seyed Muhammed Hadi Nejad Hosseinian and Muhammad Javad Zarif, on four occasions in New York and Washington, DC. Additionally, I was the only Member of Congress to attend the September 2006 address by former President Khatami at the National Cathedral. During my meetings with Iranian officials, I developed a proposal for an exchange of visits by Members of Congress to Iran and Iranian parliamentarians to the United States to try to open dialogue between our two countries. In January 2004, my efforts to foster such a dialogue were successful. There was a tentative agreement for U.S. Members of Congress to meet with Iranian parliamentarians in Geneva. Regrettably, this parliamentary exchange never came to fruition. In an effort to jumpstart this exchange, on May 3, 2007, I sent a letter, with support from Senators Biden, Hagel and Dodd and Representatives Lantos, English, Moran, Gilchrest and Meeks, to the Speaker of Iran's Parliament suggesting we convene a meeting of U.S. and Iranian parliamentarians. I have amplified my strong belief that dialogue with nations such as Iran and Syria is necessary in an extensive Senate speech on June 16, 2006 and most recently in an essay ``Dialogue With Adversaries'' published in the winter edition of The Washington Quarterly. While we can't be sure that dialogue will succeed, we can be sure that without dialogue there will be failure. I am not alone in calling for enhanced dialogue with U.S. adversaries. Of the many suggestions gleaned from the Baker-Hamilton commission, one passage crystallizes their conclusion: Our most important recommendations call for new and enhanced diplomatic and political efforts in Iraq and the region, and a change in the primary mission of U.S. forces in Iraq that will enable the United States to begin to move its combat forces out of Iraq responsibly. We believe that these two recommendations are equally important and reinforce one another. However, the President's plan places a disproportionate emphasis on military force while neglecting the needed diplomacy and political efforts. Having served in the Senate for 26 years, holding the chairmanship of the Intelligence Committee and senior positions on the Appropriations subcommittees on Defense and Foreign Operations, I am aware of what challenges nations like Iran and Syria pose to the United States. A world in which Iran seeks nuclear weapons and supports terrorist groups such as Hezbollah is not a safe world. A world in which Syria provides refuge for Hamas and Hezbollah and permits its territory to be used as a conduit for terrorism is counterproductive to peace and stability. I expressed my views on the danger the connectivity between Iran, Syria and Hezbollah poses to peace and security in an August 2, 2006, floor statement. Today, however, Americans are not dying from nuclear weapons or from direct attacks by Hamas and Hezbollah. Many are dying policing a civil conflict. President Assad, during our December 2006 meeting in Damascus, suggested that a conference with regional players and the United States would be beneficial to addressing the issues confronting Iraq. On January 22, 2007, I conveyed this proposal and my support for it to Secretary Rice in a meeting in her office at the State Department. One month later, on February 27, 2007, during her testimony before the Senate Appropriations Committee, Secretary Rice announced such a proposal: Before I discuss our specific request for Iraq, I would like to take this opportunity to announce a new diplomatic initiative relating to Iraq's future. I am pleased to tell Members of Congress that there is now being formed a neighbors' conference to support Iraq. Invitees will include Iraq's immediate neighbors, as well as representatives from other regional states, multilateral organizations, and the UN Permanent Five (the U.S., France, Britain, Russia and China). I would note that both Syria and Iran are among Iraq's neighbors invited to attend. The violence occurring within Iraq has a decided impact on Iraq's neighbors. Iraq's neighbors have a clear role to play in helping Iraq to move forward, and this conference will provide a needed forum in order to do just that. Very little has happened to effectuate that ``new diplomatic initiative.'' The Iraq Study Group clearly states: Given the ability of Iran and Syria to influence events within Iraq and their interest in avoiding chaos in Iraq, the United States should try to engage them constructively. It would have been my hope that these types of meetings would have occurred frequently in the intervening months. However, I am pleased that the President has recently indicated a commitment to ramp up diplomatic efforts in the region. Had there been Senate consideration and debate on the Warner-Lugar and Salazar-Alexander proposals, there would have been an opportunity for more senators to explicitly put the President on notice that funding beyond September was in jeopardy without significant improvement. I think this time would have also allowed Members to share concerns about the overall struggle to combat terrorism. While considering U.S. policy in Iraq, it is important we do not neglect other threats to U.S. security. Waziristan is a semi-autonomous tribal region in Pakistan's mountainous Northwest Frontier province that shares a porous border with Afghanistan. It is populated primarily by ethnic Pashtuns who do not recognize the authority of President Musharrafs government in Islamabad. Many of the Taliban who fled Afghanistan in 2001 found safe haven in Waziristan with their Pashtun brethren. Some accounts, including the 9/11 Commission report, indicate Pakistan's willingness to assist the United States. Following direct U.S. engagement with Pakistan after the September 11 attacks, the 9/11 Commission report stated that, ``Secretary of State Powell announced at the beginning of an NSC meeting that Pakistani President Musharraf had agreed to every U.S. request for support in the war on terrorism.'' However, that was 6 years ago. According to the Congressional Research Service, CRS, ``Despite clear successes in disrupting al-Qaida and affiliated networks in Pakistan since 2001, there are increasing signs that anti-U.S. terrorists are now benefiting from what some analysts call a Pakistani policy of appeasement in western tribal areas near the Afghan border.'' GEN Pervez Musharraf took a largely hands-off approach to the region after signing a truce with tribal leaders in September 2006. The truce came after 4 years of unsuccessful army operations into the region in which the government forces suffered heavy casualties and achieved little. Some accounts indicate this policy has enhanced al-Qaida's abilities: ``By seeking accommodation with pro-Taliban leaders in these areas, the Musharraf government appears to have inadvertently allowed foreign (largely Arab) militants to obtain safe haven from which they can plot and train for terrorist attacks against U.S. and other Western targets.'' Assistant Secretary of State Richard A. Boucher confirmed that al- Qaida thrived under the truce between the tribal leaders and General Musharraf: ``they were able to operate, meet, plan, recruit, and obtain financing in more comfort in the tribal areas than previously.'' Bruce Riedel, a senior fellow at the Brookings Institution, who served for 29 years with the CIA and held various positions such as Special Assistant to the President and Senior Director for Near East Affairs at the National Security Council, 1997-2002, stated in his May/ June 2007 essay in Foreign Affairs: Al Qaeda is a more dangerous enemy today than it has ever been before and the organization now has a solid base of operations in the badlands of Pakistan and an effective franchise in western Iraq. Riedel further suggests that: The United States and its partners, including NATO, also need to take a firmer position with the Pakistani government to enlist its help in tracking down al-Qaeda leaders. President Pervez Musharraf has taken some important steps against al-Qaeda, especially after its attempts to assassinate him, and he has promised more than once a full crackdown on extremism. But mostly he has sought to tame jihadists--without much success--and his government has tolerated those who harbor bin Laden and his lieutenants, Taliban fighters and their Afghan fellow travelers, and Kashmiri terrorists. Many senior Pakistani politicians say privately that they believe Pakistan's Inter-Services Intelligence (ISI) still has extensive links to bin Laden; some even claim it harbors him. Apprehending a few al-Qaeda officers would not be enough, and so a systematic crackdown on all terrorists--Arab, Afghan, and Kashmiri--is critical. Hence, Pakistan should no longer be rewarded for its selective counterterrorism efforts. Since September 11, 2001, the United States has provided Pakistan with roughly $9 billion in aid. According to the Congressional Research Service, CRS: The outcomes of U.S. policies toward Pakistan since 9/11, while not devoid of meaningful successes, have neither neutralized anti-Western militants and reduced religious extremism in that country, nor have they tributed sufficiently to the stabilization of neighboring Afghanistan. As Congress considers administration's request for an additional $785 million for fiscal year 2008, it is incumbent upon us to evaluate our relationship with them and their performance in the war on terror. Waziristan provides al-Qaida with much of what it lost in Afghanistan after September 11, 2001: safe haven; territory to train and base operations in Pakistan, Afghanistan, and beyond; and a populace sympathetic to their aims. Failing to recognize and address the situation in Waziristan risks negating the costly advances made in Afghanistan over the past 6 years and jeopardizes U.S. security. As the Senate continues to deliberate, it is my hope that we will return to the proposals offered by Senators Warner, Lugar, Salazar and Alexander. These should have been debated in great length as they make more sense in the context of not infringing on the President's authority as Commander in Chief. Rather, these bipartisan efforts would allow the President to fulfill a congressional requirement that he ought to be considering and planning for the next steps. The Senate is known as the most deliberative body in the world. Regrettably, the Senate was not permitted the opportunity to demonstrate this as we did not debate the various options before us. As I stated on the Senate floor on March 14, 2007, during a similar debate on whether to continue with the status quo in Iraq or to legislate a date certain for withdraw: It is equally undesirable, however, to view the current situation in Iraq, which looks like an endless tunnel--a tunnel without a light at the end. We are faced with very considerable discomfort in this body. I think it is very important that we debate this matter, that we exchange our views, that we stimulate discussion that will go beyond this Chamber and will resound throughout the country, resound throughout the editorial pages and the television and radio talk shows, and by our colleagues in the corridors and in the cloakroom so that we can try to work our way through an extraordinarily difficult situation where, as I see it, there is no good answer between the two intractable alternatives to set a timetable where our opponents simply have to wait us out or to keep proceeding down a tunnel which, at least at this juncture, appears to be endless and has no light. We don't know where the end is, let alone to have a light at the end of the tunnel. In a democracy, the voters ultimately decide U.S. policy. As detailed in Federalist No. 57, elected representatives must be responsive to the people: Duty gratitude, interest, ambition itself, are the chords by which [representatives] will be bound to fidelity and sympathy with the great mass of the people. Hence, the House of Representatives is so constituted as to support in the members an habitual recollection of their dependence on the people. Before the sentiments impressed on their minds by the mode of their elevation can be effaced by the exercise of power, they will be compelled to anticipate the moment when their power is to cease, when their exercise of it is to be reviewed, and when they must descend to the level from which they were raised; there forever to remain unless a faithful discharge of their trust shall have established their title to a renewal of it. If this is not understood and reflected by elected representatives, the framers placed elections into the system to remind them. Federalist No. 57 further states: The elective mode of obtaining rulers is the characteristic policy of republican government . . . The means relied on in this form of government for preventing their degeneracy are numerous and various. The most effectual one, is such a limitation of the term of appointments as will maintain a proper responsibility to the people. This was the case last November when the electorate spoke loudly disagreeing with United States policy in Iraq. As I stated on March 14, 2007: Last November, the American people spoke in a resounding manner, in a way that could only rationally be interpreted as rejecting the conduct of the war in Iraq. I am making this extensive floor statement at this time to put the administration on notice of my reservations on supporting open-ended appropriations for the Iraq war in September. This statement further urges the majority leader to structure the Senate debate in September to consider the Warner-Lugar amendment, the Salazar-Alexander amendment, and other possible amendments, as well as the Levin-Reed amendment, to give the Senate the full range of alternatives to provide the basis for 60 or more votes to change U.S. policy in Iraq.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to comment on proposed legislation to revise the Foreign Intelligence Surveillance Act of 1978 to facilitate the electronic surveillance of targets reasonably believed to be outside the United States in order to obtain foreign intelligence information relating to international terrorism. When the act was passed in 1978, communications outside the United States were characteristically transmitted via satellite and were not covered by the act which applied to wires. In the intervening 29 years, such communications now travel by wire and are covered by the act. The civil and constitutional rights of U.S. persons would ordinarily not be involved in electronic surveillance of targets outside the United States. If persons inside the United States were surveilled while targeting outside the United States, then the minimization procedures would reasonably protect civil and constitutional rights of persons inside the United States. As the Director of National Intelligence, Michael McConnell, outlined the current threat, there is an urgent need to enact this legislation promptly, certainly before the Congress adjourns for the August recess. Such modifications to FISA should have been enacted long ago and legislation has been pending for months as proposed by Senator Dianne Feinstein and myself. I am concerned by provisions of the proposed legislation which would give extensive authority to the Attorney General. Regrettably, Attorney General Gonzales does not enjoy the confidence of many, if not most, Members of Congress. There is in the Congress generally considerable skepticism about the administration's Terrorist Surveillance Program because it was kept secret for so long and concerns continue to be expressed that some portions have still not been adequately explained to the public, even where that might be done consistent with national security. There has been considerable discussion among Members of the Senate raising at a minimum serious concerns and, beyond that, objections to giving Attorney General Gonzales any additional, even if temporary, authority. Discussions have been undertaken with the Director of National Intelligence to substitute his position for that of the Attorney General; or, in the alternative, to substitute the Secretary of Homeland Security or some other official outside of the Department of Justice who has been confirmed by the Senate. I am putting these concerns on the record now so that they may be considered and resolved at the earliest time so that legislation can be concluded before Congress adjourns for the August recess.

Mr. SPECTER

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

Mr. SPECTER

Mr. SPECTER. Madam President, I begin by thanking the staff for staying a few extra minutes to enable me to come back to the floor to make a short statement. I have sought recognition to speak about a revised reform bill on immigration. In the course of the past 3 years, the Senate has spent a great deal of time on trying to reform our immigration system: to begin to fix the broken borders; to add more Border Patrols; to undertake some necessary fencing; to add drones; to undertake employer verification by utilizing identification which now can provide, with certainty, whether an immigrant is legal or illegal; to take care of a guest worker program to fill employment needs in the United States; and to deal with the 12 million undocumented immigrants. During the 109th Congress, when I chaired the Judiciary Committee, we reported out a bill. It came to the floor, and after considerable debate it was passed. The U.S. House of Representatives passed legislation directed only at border patrol and employer verification, and for a variety of reasons we could not reconcile the bills and enact legislation. This year a different procedure was undertaken: to have a group of Senators who had been deeply involved in the issue before craft a bill. It did not go through committee, and, as I said earlier on the floor, I think it probably was a mistake because the committee action of hearings and markups and refinement works out a lot of problems. At any rate, as we all know, after extensive debate, the bill went down. We could not get cloture to proceed, and it was defeated. It was defeated for a number of reasons. But I believe the immigration issue is one of great national concern--great importance-- and ought to be revisited by the Congress and that ought to be done at as early a time as possible. We have a very serious problem with people coming across our borders--a criminal element, and a potential terrorist element. The rule of law is broken by people who come here in violation of our laws. We have continuing problems from the 1986 legislation that employer verification is not realistic because there is no positive way of identification. No matter how high the borders or the value of border patrol, it is not possible to eliminate illegal immigration if the magnet is present. The legislation I will be putting in as part of the Record at the conclusion of my remarks is a draft of suggested proposals to be considered by the Senate. There are two major changes which have been undertaken. Much as I dislike to, I have eliminated the automatic path to citizenship but instead deal with the fugitive status of the undocumented immigrants, the 12 million, and eliminate that fugitive status. Whether it is categorized as permanent legal resident or some other category, as a matter of nomenclature it can be worked out. But the principal concern has not been the citizenship, although it is a desirable factor to try to integrate the 12 million into our society. But the principal concern has been that when an undocumented illegal immigrant sees a policeman on the street, there is fear of apprehension and being rounded up and deported, or the undocumented illegal is at the mercy of an unscrupulous employer who will take advantage of them and they cannot report to the police the treatment or a violation of law by an employer because they are fearful of being arrested and deported. In many places you cannot rent an apartment or undertake other activities. So I think eliminating the fugitive status is a major improvement. The other significant change is to not tamper with or change family unification but to leave it as it is now. We had come up with, with the bill which was defeated, an elaborate point system for immigration. It was our best effort but, candidly, it turned out to be half-baked. It did not go through the hearing process to hear from experts. It did not have that kind of refinement and raised a lot of problems. That could be revisited at a later date. I have worked with the so-called interest groups representing immigration interests and have had what I consider to be a relatively good response. I do not want to characterize it or put words in anybody's mouth. There is a certain reluctance to make any more concessions because concessions were made last year and the bottom fell out. So they made an inquiry, understandably so, that there be some realistic chance of getting the bill passed if they are to give up a path to citizenship. I have undertaken to talk to many of my colleagues, Senators who opposed the bill, to get a sense from them as to whether, with the automatic path to citizenship out, and dealing only with the fugitive status, that there might be some greater willingness to find an accommodation and deal with the issues. With respect to citizenship, even under the legislation that was defeated, there would not be an opportunity for citizenship until at least 8 years have passed, to take care of the backlog, and then another 5 years to work out the 12 million undocumented immigrants. So the citizenship, even under the bill which was defeated, was not something which was going to be imminent. We have seen local governments and State governments trying to deal with the issue. Reports are more than 100 laws have been passed and ordinances enacted which would deal with the immigration problem. They cannot do it on a sensible basis. Last week the U.S. District Court for the Middle District of Pennsylvania handed down an opinion that the city of Hazelton, notwithstanding the understandable efforts by the mayor, program was not constitutional; that under our laws, the answer has to come from the Congress. We have seen a lot of unrest on the issue. The front page of the Washington Post the day before yesterday had a report about groups of immigrants feeling that they had been mistreated. There was an uneasiness on all sides, uneasiness by people who are angry about the violation of our borders, by immigrants who think they are not being fairly treated, and a grave concern about the availability of workers on our farms across America, concerns of the hotel industry and landscapers and restaurateurs about the adequacy of our labor force. So there is no doubt that this is a very significant issue. Last week I circulated to my 99 colleagues a letter, and one page summarizing the study bill--I will call it a study bill. I ask unanimous consent that the text of the draft proposal and the one-page letter circulated to all other Senators be printed in the Record.

Mr. SPECTER. In conclusion, I emphasize that I am inviting suggestions and comments for improving the bill. The one view that I do have, very strongly, is that it is our pay grade to deal with this issue. Only the Congress can deal with the immigration problem, and it is a matter of tremendous importance that we do so. We obviously cannot satisfy everyone, but I invite analysis, criticism, and modification. I see my distinguished colleague from Vermont, one of my distinguished colleagues from Vermont, awaiting recognition. Exhibit 1 U.S. Senate, Committee on the Judiciary, Washington, DC. Dear I believe it is possible to enact comprehensive immigration reform in this Congress, perhaps even in this calendar year, if we make two significant changes in the bill we recently had on the floor. First, a new bill should eliminate the automatic path to citizenship for the approximately 12 million undocumented immigrants. Instead, we should just eliminate the fugitive status for the 12 million so that they would not be fearful every time they see a policeman, be protected from unscrupulous employers who threaten to turn them in if they don't do the employer's bidding, and be free to do things like rent apartments in cities which now preclude that. From soundings I have taken from many senators, that should take the teeth out of the amnesty argument, which was the principal reason for the defeat of the last bill. Second, we should not tamper with the current provisions on family unity with the elaborate point system which was insufficiently thought through. If that is to be ultimately accomplished, we need hearings and a more thoughtful approach. Third, although not indispensable, I believe we should provide more green cards to assist the hitech community. The enclosed draft bill covers these three changes and also includes the guest worker program, the increased border security and enhanced employer verification in the last bill. Because it will be easier to get real border security if we deal with the 12 million undocumented immigrants, I think this proposal presents an alternate and plausible path to achieve comprehensive immigration reform now. I have discussed this proposal with the senators who were part of the core negotiating group and with the relevant interest groups and have received a generally favorable response and, in many cases, an enthusiastic response. Similarly, in discussing the proposed bill with the dissenters, I have heard no strenuous adverse response so I believe it is worthy of a repeat effort. Although the defeat of the bill on the Senate floor was a major disappointment, I think that we proponents of comprehensive immigration reform have significant momentum and these changes, perhaps supplemented by other modifications, could put us over the top. Sincerely, Arlen Specter.

Mr. SPECTER

Mr. SPECTER. Mr. President, I wish to amplify my brief earlier statement regarding my vote against the DeMint amendment No. 2481 to the fiscal year 2008 Homeland Security Appropriations Act. On February 28, 2007, during Senate consideration of the Improving America's Security by Implementing Unfinished Recommendations of the 9/ 11 Commission Act of 2007, there were two side-by-side votes on amendments related to criminal offenses which disqualify an applicant from receiving a transportation worker identification credential. The first vote was on an amendment offered by Senator Inouye. This amendment, amendment No. 285, specified certain criminal offenses which would disqualify an applicant from receiving the transportation worker identification credential but gave the U.S. Secretary of Homeland Security the authority to add to or modify the listed offenses in a rulemaking. I voted in favor of this amendment because I believe the Secretary ought to have the authority to modify the existing list of crimes when circumstances warrant a regulatory change, and the amendment was adopted by a vote of 58 to 37. The second vote was on an amendment offered by Senator DeMint. This amendment, amendment No. 279, was identical to the previous amendment offered by Senator Inouye aside from its omission of Secretarial authority to modify the list of existing offenses. Since these amendments were in direct contradiction with one another over the issue of granting the Secretary authority to modify the existing list, I voted against the DeMint amendment. Nevertheless, it was adopted by a vote of 94 to 2, with 56 Senators voting to contradict the position they had taken on the previous amendment. Therefore, when the question came up on the DeMint amendment No. 2481 to the fiscal year 2008 Homeland Security Appropriations bill, which would have prohibited funds provided in the act from being expended by the Secretary to remove offenses from the list of criminal offenses disqualifying individuals from receiving a transportation worker identification credential, I voted against it, not only because I believe it is sound public policy to require flexibility on such matters but also because it was consistent with my position on the Inouye amendment to the Improving America's Security by Implementing Unfinished Recommendations of the 9/11 Commission Act of 2007. The DeMint amendment No. 2481 was adopted by a vote of 93 to 1 even though it was again in direct contradiction to the position taken by the Senate when it adopted the Inouye amendment to the Improving America's Security by Implementing Unfinished Recommendations of the 9/11 Commission Act of 2007.

Mr. SPECTER

Mr. SPECTER. Mr. President, I seek recognition to explain my vote against the DeMint amendment no. 2481 to the Fiscal Year 2008 Homeland Security Appropriations Act. I voted against the DeMint amendment because it prohibited the Secretary from modifying the existing list of crimes disqualifying someone from receiving a Transportation Worker Identification Credential when circumstances warrant a regulatory change. Sound public policy requires flexibility on such matters and Congress can rely on the Secretary, a Cabinet official, to exercise sound discretion. If the Secretary fails to do so, Congress can always intervene and change the law.

Mr. SPECTER

Mr. SPECTER. Maybe the Senator from Illinois will change his mind, too.

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

Mr. SPECTER. Mr. President, I further ask unanimous consent that I may be permitted to speak for up to 30 minutes.

Mr. SPECTER. Mr. President, I have sought recognition to reply to a floor statement made earlier today by the senior Senator from Illinois concerning the pending nomination of Judge Leslie Southwick for the Fifth Circuit Court of Appeals. The Senator from Illinois asserted that ``there are too many questions about whether Judge Southwick would bring a measure of fairness in cases involving civil rights and the rights of ordinary people in his court.'' But in the course of the speech of the Senator from Illinois, he only raised one question. That one question was about a specific case. The Senator from Illinois went on to say: This perception as to whether he will be fair or evenhanded is determinative in my mind. Whether you agree with that perception, it is there. I begin by disagreeing categorically with the Senator from Illinois that it is a matter of perception. It is a matter of fact. When he says this perception as to whether he will be fair or evenhanded is determinative, I disagree strongly. What is determinative is what are the facts of his record taken in totality. The one question which the Senator from Illinois has raised involves a case where the Mississippi intermediate appellate court upheld a finding by an administrative board that an employee should not be fired under the circumstances which I will now describe. The employee had made a racial statement which was a one-time comment. The slur was not in the presence of the targeted coworker. The employee apologized to the coworker. The coworker accepted the apology. The incident did not produce any significant workplace disruption. The administrative board then made the determination that the incident did not warrant dismissal of the employee. The question then presented to the court on which Judge Southwick sat, the intermediate appellate court, was whether the finding by the administrative board was arbitrary and capricious; that is, whether there was sufficient evidence for them to find to that effect. When Judge Southwick testified before the Judiciary Committee, he was emphatic in his statement that the slur was unacceptable, that he did not agree with that kind of conduct, and that it was the worst kind of word to use--the so-called ``N'' word--but that his role as an appellate judge was to make a legal determination on whether there was sufficient evidence to uphold the decision or whether the administrative board was arbitrary and capricious. The Senator from Illinois then said that the Mississippi Supreme Court unanimously reversed the majority opinion. But, the fact is--and this is implicitly acknowledged by the Senator from Illinois--that the only reversal was on the very narrow ground of whether there had been sufficient findings by the administrative board to come to its conclusion. The Mississippi Supreme Court agreed with the Mississippi intermediate appellate court that dismissal was an inappropriate remedy. That was really the core of the case. But the State supreme court said there ought to be more facts stated by the administrative board in coming to that conclusion, which was a highly technical modification as to what the appellate court had said. The Senator from Illinois further made a very brief reference, a one- sentence reference, in his speech, to a custody case in which ``he voted to take an 8-year-old girl away from her lesbian mother. I disagree with Judge Southwick's position in these cases.'' That is the only thing he had to say about the custody case which has been cited against Judge Southwick. Here again, as in the case involving the racial slur, Judge Southwick did not write the opinion. He concurred in the opinion. I think fairly stated as a legal matter, when someone writes the opinion, there is full responsibility for everything in it. In a sense, one might say the same thing about someone who concurs. That person could write a separate concurring opinion. But unless there is something extraordinarily wrong, out of line, that is not a common practice. In the second case to which the Senator from Illinois referred--only one sentence--there were many factors which led to the award of custody to the father, such as he had a steady job, he had a higher income, he owned a large residence, and he had roots in the community. Although the Senator from Illinois did not refer to one sentence in the opinion--again, which Judge Southwick did not write but concurred in-- there was a reference to a ``homosexual lifestyle'' which has been used frequently, including the Lawrence v. Texas decision. It is perhaps not the most sensitive kind of language, and perhaps there could have been a substitution for it, but it certainly does not rise to the level of a disqualifier. The Senator from Illinois has said that Judge Southwick could not be fair to run-of-the-mill litigants in the courts and cited a couple of studies, which are not identified, which do not specify any authors, and on their face, in the statement by the Senator from Illinois, I think fairly stated should be entitled to really very little, if any, weight. But let's take a look at some of the specific cases that Judge Southwick has decided. In a case captioned McCarty Farms Inc. v. Caprice Banks, Judge Southwick affirmed an award of permanent partial disability benefits for a woman who experienced a 70-percent industrial disability to her right arm and a 30-percent loss to her left. However, Judge Southwick wrote separately to argue that injured workers deserve more evidentiary options to prove damages. He would have instructed the court to consider wage-earning capacity as well as functional or medical impairment. In the case captioned Sherwin Williams v. Brown, Judge Southwick held a 45-year-old carpet layer was permanently and totally industrially disabled due to an onsite injury and that the carpet layer made reasonable efforts to obtain other employment. Judge Southwick concluded he was entitled to permanent total disability benefits. In a case captioned United Methodist Senior Services v. Ice, Judge Southwick affirmed the award of workmen's compensation benefits to a woman who hurt her back while working as a certified nursing assistant, despite her first employer's claim that she exacerbated the injury during her subsequent employment. In addition, Judge Southwick recognized that the evidentiary standard the employer sought to impose would have prevented many plaintiffs from receiving compensation for a work injury. In Kitchens v. Jerry Vowell Logging, Judge Southwick reversed the Workers Compensation Commission's decision that a truck driver from a logging company did not suffer a permanent loss of wage-earning capacity, and remanded the case for further consideration. In Total Transportation v. Shores, a 6-to-4 decision, Judge Southwick joined the other three dissenters, who would have upheld an award of workmen's compensation benefits for a truck driver's widow where the majority ruled in favor of the employer. In Burleson v. Hancock County Sheriff's Department, a 6-to-3 decision, again Judge Southwick joined in dissent, arguing that a public employee was unconstitutionally fired, while the majority ruled in favor of the employer. Similarly, Judge Southwick has ruled numerous times in favor of tort victims and against businesses. In Ducksworth v. Wal-Mart Stores, Judge Southwick voted to reverse a trial court's verdict against a customer who had slipped on an unknown substance at Wal-Mart. In Breland v. Gulfside Casino Partnership, Judge Southwick voted to reverse summary judgment for a casino in a slip-and-fall action brought by a patron who had suffered multiple injuries falling down a casino staircase. In Martin v. B. P. Exploration & Oil, Judge Southwick voted to reverse summary judgment against the plaintiff, who injured her ankle upon exiting a gas station's restroom on an allegedly poorly constructed access ramp. In Wilkins v. Bloodsaw, Judge Southwick voted to reverse a grant of summary judgment in favor of a Pizza Hut which was sued by a mother who was injured when her disabled son fell as she tried to help him exit the restaurant. Similarly, Judge Southwick has voted in favor of criminal defendants on numerous occasions, often in dissent. For example, in Jones v. State, a 5-to-5 decision, Judge Southwick dissented, arguing for reversing a conviction because the indictment did not provide the defendant with sufficient clarity to know with certainty what crime was being charged. In Parker v. State, Judge Southwick dissented, arguing that a murder conviction should be reversed because the trial judge failed to give a proper jury instruction. In Mills v. State, a 6-to-3 decision, Judge Southwick dissented from the majority, affirming a drug conviction on the grounds that the court should not have admitted a statement by the defendant's 4-year-old son, and the State failed to disclose a piece of evidence against the defendant that it had in its possession. In Harris v. State, a 5-to-4 decision, Judge Southwick dissented from the majority opinion, affirming a drunk driving conviction on the grounds that the trial court erroneously allowed the State to avoid proving all the elements charged in the indictment. In Hughey v. State of Mississippi, Judge Southwick affirmed the trial court's decision to disallow cross-examination as to the victim's sexual preference, recognizing that whether the victim was homosexual was not relevant to the defense, and that such a line of inquiry could produce undue prejudice. This Hughey v. State of Mississippi case, where Judge Southwick excluded a victim's sexual preference, is a strong indication--much stronger than the one line in the argument by the Senator from Illinois--concerning the issue of a ``homosexual lifestyle.'' There are also testimonials, and I will offer two. La'Verne Edney, a distinguished African-American woman partner in a prominent Jackson, Mississippi, law firm, a member of the Magnolia Bar Association, the Mississippi Women Lawyers' Association, and a member of the Mississippi Task Force for Gender Fairness, has shared her compelling story of Judge Southwick, who gave her an opportunity when few would. This is what she said, and I quote: When I finished law school . . . I believed that my chances for landing a clerkship were slim because there was only one African-American Court of Appeals judge on the bench at the time and there were very few Caucasian judges during the history of the Mississippi Supreme Court or the Court of Appeals . . . who had ever hired African-American law clerks. . . . While Judge Southwick had many applicants to choose from, he saw that I was qualified for the position and granted me the opportunity. Ms. Edney further observed: It did not matter the parties' affiliation, color or stature--what mattered was what the law said and Judge Southwick worked very hard to apply it fairly. Judge Southwick valued my opinions and included me in all of the discussions of issues presented for discussion. Having worked closely with Judge Southwick, I have no doubt he is fair, impartial, and has all of the other qualities necessary to be an excellent addition to the United States Court of Appeals for the Fifth Circuit. Now, contrast what Ms. Edney said, a prominent lawyer engaged in all of the advocacy groups--gender fairness, women trial lawyers, Magnolia Bar--compare that to the opinion of Judge Southwick in one case, where he joined in a concurring opinion, where there was a racial slur immediately apologized for, with what this woman, who was his law clerk, found in a very detailed relationship showing fairness and justice. Patrick E. Beasley, a practicing attorney in Jackson, Mississippi, who also happens to be African-American, endorsed Judge Southwick for, among other qualities, his fairness to minorities. This is what Mr. Beasley had to say: I speak from personal experience that Leslie Southwick is a good man who has been kind to me for no ulterior reason. I am not from an affluent family and have no political ties. While I graduated in the top third of my law school class, there were many individuals in my class with higher grade point averages and with family ``pedigrees'' to match. Yet, despite all of the typical requirements for the clerkship that I lacked, Judge Southwick gave me an opportunity. Despite all the press to the contrary, Judge Southwick is a fair man and this is one of the qualities that makes him an excellent choice for the Fifth Circuit Court of Appeals.

Mr. SPECTER. No. But I will be glad to respond to the Senator from Alabama when I finish my speech. I will be glad to respond to him at length. The overall record--I have changed my mind. I will yield for a question.

Mr. SPECTER. Mr. President, the question posed by the distinguished Senator from Alabama is illustrative of the unfairness of citing that case against Judge Southwick, because he did not sanction the slur which was uttered. In fact, the administrative review board did not sanction the slur. The administrative review board had only the question to decide as to whether that was grounds for permanent dismissal. That is the only question they had to decide. And then when the case came before the Mississippi intermediate appellate Court, as the Senator from Alabama has noted, that court had only to decide whether the ruling by the administrative review board was arbitrary and capricious, which means that there was insufficient evidence to sustain it. So Judge Southwick is removed by two major barriers from any conceivable approval of a racial slur: first, on the fact that the administrative board said it was bad, Judge Southwick said it was bad; and, in addition, there was sufficient evidence for the administrative board to find what it did. Now, on the critical question as to whether there were any grounds for permanent dismissal because of what was said, everybody said no-- that is, the administrative board, the intermediate appellate court, and the State Supreme Court--contrary to the bland assertion by the Senator from Illinois that the intermediate appellate court was reversed. The Supreme Court said everybody is correct, there are not grounds for permanent dismissal, but we think the administrative board should have given more details as to the reasons why it came to that conclusion.

Mr. SPECTER. Well, I thank the Senator from Alabama for complimenting me for my passion for truth. It so happens that is the title of the book I wrote--Harper Collins, available online. Back to the case, though, Mr. President, and I will be brief here. I would point to Judge Southwick's overall record. It is an excellent record: cum laude from Rice, J.D. from the University of Texas Law School, clerk for the Court of Appeals for the Fifth Circuit, an adjunct professor in the Mississippi College of Law, unanimously well qualified by the American Bar Association. And then an extraordinary thing. When he was in his fifties, he volunteered to go to Iraq in the Judge Advocate General's Corps, and was in areas with very heavy fighting. He interrupted a 12-year service on the Mississippi appellate court to do that. That is an extraordinary act, really extraordinary, for somebody in his position to do. I sat down with Judge Southwick at some length to talk to him, and he is an enormously impressive man. He is very mild mannered. He has been on the court, as I say, for 12 years. He has participated in 6,000 cases, he has written 985 opinions, and all they can extract out of this record is one case which, as the colloquy with the Senator from Alabama points out, doesn't establish a peppercorn. That is a legal expression for being practically weightless in terms of what their objections are. The Senator from Illinois then went through the history of the last two nominees who were shot down. I have a reputation and a record to back it up, to have supported President Clinton's nominees, crossing party lines, when they were qualified. The Senator from Illinois makes it a point--not that it has anything to do with this case--that the Republicans didn't give 70 of President Clinton's nominees a hearing. That was wrong. That was wrong. But what we are doing here is we are visiting on Judge Southwick somebody else's sins. If I thought he was not qualified, I wouldn't be taking the lead that I am in this case. When we go through these issues, it is reminiscent of the very contentious controversy which was raised on this floor in 2005 when the Democrats were filibustering judges in retaliation for what had happened during the Clinton years and the Republicans were threatening the so-called constitutional or nuclear option. We ought not go back to those days. When you have a man with the record of Judge Leslie Southwick, he is being picked on. With the extensive record he has, to cite one case and to talk about perception--I repeat, when the Senator from Illinois says that perception is determinative, I say that this body ought to vote on the facts. I am pleased to see that a number of Democrats are interviewing Judge Southwick, and I believe they will find him to be very impressive, as I did. I strongly urge my colleagues to look at the facts very carefully. The Senate should not function on perception. The Senate should not function on what somebody else concludes or believes. We ought not do that. We ought to look at the record and make the decision in fairness to this man and in fairness to the entire process of confirmation of Federal judges. I yield the floor.

Mr. SPECTER. Mr. President, I seek recognition to offer my support for the amendment to be offered by Senator Casey with regard to homeland security grant timelines. This amendment would lengthen the amount of time available to obligate funds provided in fiscal year 2008 under the State Homeland Security Grant Program and the Rail and Transit Security Grant Program from a maximum of 36 months to a maximum of 48 months. I am advised that several transit agencies have encountered problems obligating homeland security grant funding within the current timetable, particularly for large and complex projects such as installing underground emergency communications networks in subway tunnels. The Southeastern Pennsylvania Transit Authority, SEPTA, in particular, has encountered problems which have thus far prevented it from being able to utilize federal homeland security grant dollars to install an emergency communications network in its 20-mile subway tunnel system which runs underneath portions of the city of Philadelphia. The absence of a communications system capable of functioning underground severely limits the ability of SEPTA and first responders to deal with a potential emergency in Philadelphia's subway tunnels and does not provide an adequate level of protection for the traveling public. Specifically, SEPTA claims that a 3-year period is not sufficient time to coordinate regional interoperability issues with the city of Philadelphia and the surrounding first responder agencies. It is my understanding that preliminary engineering requirements and the time associated with procuring the necessary technology further compound the problem. Finally, SEPTA claims that it does not receive enough homeland security grant funding in a 3-year period to complete such a complex project. This amendment will provide SEPTA and other transit agencies in similar predicaments with additional time to plan, coordinate, secure technology for and fund important and complex projects such as underground communications systems. I urge my colleagues to support this amendment.

Mr. SPECTER

Mr. SPECTER. Madam President, I voted to sustain the point of order that the DeMint amendment was not germane to the pending higher education bill. There is no doubt that the DeMint amendment on labor law involving secret ballots has nothing to do with education. Therefore, it is out of order on this bill unless 60 Senators vote to waive the Budget Act. I recently voted to invoke cloture on the so-called card check bill for reasons detailed in a lengthy floor statement that was a vote on procedure in order to debate and consider the adequacy of the NLRB's handling of unfair labor complaints including elections for union certification. That vote and tonight's vote do not signify my position on the substantive provisions of the entitled Free Choice card check Act or the DeMint amendment.

Mr. SPECTER

Mr. SPECTER. Mr. President, I had made arrangements with the managers to speak between 12 and 12:30 on another matter, the pending nomination of Judge Leslie Southwick for the Fifth Circuit. Others have spoken longer, so I would ask unanimous consent that at this time I be permitted to speak for up to 15 minutes. I will try to make it a little shorter.

Mr. SPECTER. Mr. President, I need a little more time than that. I will try to be shorter, but I would like the leeway of up to 15 minutes, as I had asked a few moments ago.

Mr. SPECTER. Mr. President, as stated a moment ago, I have sought recognition to speak about the nomination of a Mississippi appellate court judge, Leslie H. Southwick, to be a Federal judge on the Fifth Circuit Court of Appeals. I have asked for this time because Judge Southwick has been before the Judiciary Committee on several occasions and, because there is not much known about his record, there have been certain objections raised. I have talked to our colleagues on both sides of the aisle, and when they hear about his record, they are surprised that he is not moving through expeditiously. I thought it would be important to take a few moments to acquaint Senators with his record and, beyond that, to acquaint the public with the pending nomination. This Chamber has seen some very contentious moments, going back over the past two decades, of partisanship on judicial nominations and extensive filibusters in 2004. Judges of both sides have been held up, with Republican Presidential nominees held up by a Democratic- controlled Senate, and the same thing with President Clinton's nominees being held up by a Republican Senate. I moved and supported President Clinton's nominees when they were qualified, and broke ranks. It seems to me that we ought to be looking at the merits of these nominees and not engaging in partisanship to block nominations when courts such as the Fifth Circuit are urgently in need of additional judicial manpower. Judge Southwick has a very outstanding record, which I will detail briefly. I also want to deal with the objections which have been raised against him, which I do not think are substantial--not disqualifiers by any sense. Judge Southwick is 57 years old--a perfect age to come to the court of appeals, considering his background. He is a cum laude graduate of Rice University in 1972 and has a law degree from the University of Texas. He served as a law clerk on the Texas Court of Criminal Appeals, and then he was a law clerk to Judge Charles Clark on the Fifth Circuit. So he has had experience in a clerk's capacity on the court to which he has now been nominated. He practiced law for 12 years, with a distinguished practice first as an associate and then as a partner at a respected Mississippi law firm. He was Deputy Assistant Attorney General for the United States Department of Justice for 4 years between 1989 and 1993. He is an adjunct professor at the Mississippi School of Law. He has been a volunteer for Habitat for Humanity doing community service. He was the recipient of the Judicial Excellence Award from the Mississippi State Bar and was rated by the American Bar Association as unanimously well qualified. When he was 42 years old, in 1992, he obtained an age waiver in order to join the Army Reserve. Then, in 2002, he volunteered, at the age of 53, to transfer to a line combat unit, and he served on forward- operating bases near Najaf in Iraq. Major General Harold Cross characterized Judge Southwick's volunteering for duty in Iraq as follows: This was a courageous move; as it was widely known at the time that the 155th was nearly certain to mobilize for overseas duties in the near future. He is a man with an outstanding background and a courageous man who stepped forward at an advanced age to volunteer for service in Iraq, something that doesn't happen very often. It is a very rare occurrence. On the Mississippi Court of Appeals, Judge Southwick has participated in between 6,000 and 7,000 cases--it is hard to be precise because many of them are unreported. He has written 985 opinions himself in the course of some 12 years. The objections to Judge Southwick have focused on two cases. I wish to discuss very briefly these cases because I think, on their face, they show there is not any reason this man should not be confirmed. I discussed these cases with him. I met with him at length and talked with him about his judicial career and his service in Iraq. He is a mild-mannered professional who is a confident man--not flamboyant and not overstated. We talked about legal issues. He is a solid lawyer and has been a solid judge. But the objections to him have focused on two cases. In one, a case captioned Richmond v. Mississippi Department of Human Services, the case involved a State social worker, Ms. Bonnie Richmond, who used, admittedly, an outrageous racial slur. The administrative board reviewing the matter to determine whether she should be dismissed or censured made the determination that she should not be dismissed based on the evidence before it: the racial slur was an isolated comment made outside the target's presence, it was followed by an apology which was accepted, and it did not result in significant disruption of the workplace. Under these circumstances, the review board concluded the dismissal of a public employee was not warranted. Under Mississippi law, the board's ruling could be reversed only if it was arbitrary and capricious. That is the general standard for reversing an administrative decision. The Mississippi Court of Appeals applied that standard, which is deferential to the fact finder, to determine if there was sufficient evidence to support it, and the court decided that there was sufficient evidence. This is a case where Judge Southwick did not write the opinion, only concurred in the opinion. The Mississippi Supreme Court, while finding that the administrative board needed to give more detailed reasons for its conclusions, nonetheless concluded that dismissal was not warranted--agreeing with the appellate court on which Judge Southwick sat. In the hearing before the Judiciary Committee, Judge Southwick was asked about the case, and he said the slur was ``always offensive,'' ``inherently and highly derogatory,'' and said there was ``no worse word.'' In the face of his overwhelmingly good record, how can a man be denied confirmation on the basis of that situation? There was another case about which Judge Southwick has been questioned, S.B. v. L.W., a custody case where the chancellor awarded the father custody of a child instead of the child's bisexual mother. There were numerous factors leading to the award for the father, all of which were considered and weighed in favor of the father--steady job, higher income, owner of a large residence, and roots in the community. The objection came because the majority and concurring opinions-- again, not Judge Southwick's opinions, but ones that he joined--made reference to ``homosexual lifestyle.'' But, that is the same phrase used in Mississippi Supreme Court precedent. It is also a phrase which was used by the majority in the Lawrence case, Lawrence v. Texas, and has been used by many people, including President Clinton. So, there is hardly a basis for objecting to that kind of a reference, it seems to me. My record on civil rights and on rights for people regardless of lifestyle is well accepted. I can't see how this man can be pilloried on this basis. Moreover, he wrote an opinion, in a case called Hughey v. State of Mississippi, where he affirmed the trial court's decision to disallowed cross-examination as to the victim's sexual preference, saying he recognized the victim was homosexual, but that was not relevant to the defense and that such a line of inquiry would produce undue prejudice. If there is a case where lifestyle is not involved, the trial court would not allow a party to try to smear someone with a reference to his or her being a homosexual. Judge Southwick affirmed it, as anybody would. But it shows his own sensitivity on this matter. There are a couple of comments by some individuals who are very supportive--one a woman named La'Verne Edney, a distinguished African- American lawyer who is a partner in a prominent Jackson, Mississippi firm. She had some very complimentary things to say about Judge Southwick. He hired her as a clerk at a time when few others would hire a young African-American woman. Similarly, a practicing attorney named Patrick Beasley, also African American, wrote about Judge Southwick's sensitivity on racial matters. Because of limited time, I ask unanimous consent their statements be printed in the Record without my going into them.

Mr. SPECTER

Mr. SPECTER. Mr. President, reserving the right to object, and I do intend to object, I believe this body ought to stay on the Defense authorization bill. We have just seen a procedure in the last 24 hours which has been a colossal waste of time. The time to have a showdown with the President was either on the funding request, which was 2 months ago, or in September. There was no way there would have been sufficient votes to have 60 votes or 67 votes to have anything meaningful done. And speaking for myself, having been in this body for a substantial period of time, I think what has happened in the past 24 hours has been an indignity. This is reputed to be the world's----

Mr. SPECTER. I do object. And I would also----

Mr. SPECTER. The leader speaks at great length about if another Member seeks to speak, he ought to be accorded that privilege.

Mr. SPECTER. Will the majority leader yield?