Arlen Specter

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to discuss the case of Hamdan v. Rumsfeld which was decided by the Supreme Court of the United States today and to address the question as to where we go from here. There have already been many inquiries as to what is the import of this Supreme Court decision and what are the next steps in order to establish a framework to deal with the people who are detained at Guantanamo Bay. Since the opinions were released this morning, my staff and I have been reviewing them: 177 pages, 6 opinions. The essence of the decision of the Supreme Court of the United States on a 5-to-3 vote is that the President did not have the authority to establish the military commissions and that the authority rests with the Congress under the Constitution. The Court dealt with the issue of the resolution that authorizes the use of military force, a resolution which the administration has sought as authority for amending the Foreign Intelligence Surveillance Act, and when the Court dealt with the resolution authorizing the use of military force, the Court said that it did not give the President the authority to establish the military commissions. The Court did not deal with any issue of inherent authority. But the decision that the President lacked the authority to establish the military commissions makes it obvious that the conclusion of the Supreme Court is that there is no inherent authority, an inference and a proposition which may have some weight as we consider collateral matters, for example, on the electronic surveillance under NSA. The Constitution of the United States is explicit in article I, section 8, which states, and I am leaving out some of the irrelevant language: Congress has the authority ``to make rules concerning captures on land and water.'' So it is a congressional matter. In reaching its conclusion, the Supreme Court of the United States found that the military commissions violated the Code of Military Justice and also violated the terms of the Geneva Convention. The Court found that the military commissions violated the Code of Military Justice because they did not provide for very basic due process considerations. The Court said that the military commissions violated the Geneva Convention, which the Court found applicable, reversing the Court of Appeals for the District of Columbia where the Supreme Court said: The Geneva Convention, common article 3, plainly affords some minimal protection to individuals, associated with a signatory or even a nonsignatory, who are involved in a conflict. The Court dealt with the issue of jurisdiction by saying the Government contention that the Supreme Court had no jurisdiction was wrong. The Supreme Court referred to a provision of the Detainee Treatment Act of 2005, which provides: No court shall have jurisdiction to hear or consider an application for habeas corpus filed by an alien detained at Guantanamo Bay. . . . There was a reference to the statutory provision which gave exclusive jurisdiction, according to the statute, to the District of Columbia court. The statute provided specifically: . . . the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of any final decision of a Combatant Status Review Tribunal which determines that an alien is properly detained as an enemy combatant. I argued as forcefully as I could when that amendment was considered, that it was really atrocious--without any hearings, without any extended floor debate, and I had 2 minutes to speak under the rules governing the amendment--that we would be taking away jurisdiction of the Federal courts except for the District of Columbia. On its face, that language would say that the Supreme Court of the United States had no jurisdiction. The Supreme Court made short shrift of that point, saying that it did have jurisdiction. When you deal with a constitutional issue, it is hard for this lawyer to understand how you can take away jurisdiction from the Supreme Court of the United States. How can you do that, when we know since Marbury v. Madison in 1803 that the Supreme Court of the United States is final arbiter of the Constitution? But this language, this clumsy language sought to vest exclusive jurisdiction in the Court of Appeals for the District of Columbia. The Supreme Court made short shrift of that. On a personal note, and relevant to this consideration as well, in Justice Scalia's dissent he cites my floor argument in a footnote saying, at page 12 of his opinion: An earlier part of the amendment provides that no court, justice or judge shall have jurisdiction to consider the application for writ of habeas corpus. . . .Under the language of exclusive jurisdiction in the D.C. Circuit, the U.S. Supreme Court would not have jurisdiction to hear the Hamdan case. . . . Id., at [Senate Congressional Record] S12796 (statement of Sen[ator] Specter). Interesting that Justice Scalia, who doesn't believe in congressional intent or congressional deliberation, would make that citation. But when I made the point that the statute, on its face, took away jurisdiction from the Supreme Court of the United States, I made it plain that I did not think it had any validity. A statute can not do that. What the statute was trying to do, in part, was to look to a favorable court. The DC Circuit was a favorable court--they engaged in a little court shopping--and there was an effort to take away the jurisdiction of the district court from habeas corpus proceedings. Under the logic of Hamdan, where you have a statutory provision that the DC Circuit has sole jurisdiction and the Supreme Court interprets that as not taking away jurisdiction of the Supreme Court, inferentially the same conclusion would follow for the district court. It doesn't say the district court does not have jurisdiction, just like it does not say the Supreme Court does not have jurisdiction. It just says exclusive jurisdiction is in the DC circuit. It is a little hard to see how that would work out if you filed a petition for a writ of habeas corpus in the DC Circuit. That would be anomalous. Those petitions are filed in the district court. In any case, the Supreme Court claimed jurisdiction over the case and found that the procedures which the administration has prescribed do not comport with law. The Judiciary Committee held a hearing on Guantanamo and made a field trip there. A number of us, including myself, went to take a look at Guantanamo, to see it firsthand and to question people there. I had gone there with the expectation of having a field hearing there. I wanted to hear from the officials at Guantanamo. When I got to Guantanamo, after the flight in, I was told there would be no field hearing--which was a disappointment, and really contrary to what I had understood the arrangement to be. But we held a hearing and devoted a considerable amount of work to the issue. Knowing, or thinking that, the administration's military commissions would be struck down because they did so little and had no real relationship to due process, we prepared legislation. I had it put in final form last week when we considered the Department of Defense authorization bill, and one Senator did talk about legislation. I considered offering it at that time but decided that it was not a good time to do so. But we have it ready to go, ready for introduction. Senator Durbin and I introduced a bill to handle the Guantanamo detainees on February 13, 2002. The issue was not picked up again until the Judiciary Committee held hearings last June, and this bill, which I am introducing today, I believe, will satisfy the requirements of the Supreme Court of the United States. This bill provides for two divisions. One is for the people who are charged with specific offenses. We retain the description of a military commission. We provide that there would be three officers on the commission, one president--a presiding judge from the Judge Advocate General's Office. Also an attorney will be provided for the accused, there will be competent evidence, there will be cross-examination and a unanimous verdict. In the event of the use of classified information, we prescribe that the provisions of the Confidential Information Protection Act would govern, which is a statute which has been used in our courts for many years, which authorizes the presiding judge to sift through the information and make available to the defense whatever is appropriate and not classified. And if it is classified, then to make it available at the discretion of the judge to the attorney. The attorney for the accused would be cleared through regular channels to deal with classified information so that we would be protecting the classified information by having it viewed only by someone authorized to take a look at it, so that the defense lawyer would be able to use it in the defense of his client. That is not a perfect situation, but that is the way we have dealt with confidential information under the so-called Confidential Information Protection Act. In our legislation, we also deal with the enemy combatants. These are the individuals who have been detained at Guantanamo under an arrangement where there is no limit as to the length of their detention. That has caused considerable angst, considerable objection. But it is a very difficult matter. When we are in a war, fighting terrorists--and we should never lose our focus that we are in that war and that there are continuing dangers and we have to protect Americans--until somebody has a better idea, they are going to be detained. Some have been released and some of those released have been found on the battlefields killing Americans, so the detention of enemy combatants is an ongoing issue. Our legislation provides that there would be a classification tribunal so that there would be a review of their status, to make a determination on a periodic basis that they continue to be a threat to the United States, either on the continent or because they will go back and fight a war. We provide for an attorney, again, an attorney who would be cleared to view classified information. The issue of evidence is much more difficult because these enemy combatants are frequently taken into custody in a battlefield situation where competent evidence is not present, so we allow for hearsay. In the Supreme Court opinion, if there is a showing of necessity, there is leeway granted in terms of defining sufficient due process. The Supreme Court found, for example, that the President had demonstrated sufficiently that there could not be trials in the U.S. Federal district courts, so ruling that out was fine. It was acceptable. And leeway, too, for some deviation from all of the generalized rules might be acceptable. The Supreme Court really didn't reach the issue of granting leeway because they didn't have a specific situation, but there would have to be a showing of necessity, a showing that no other system would work. So in dealing with the enemy combatants, we are still struggling with how to handle the issue of indefinite detention, recognizing that they continue to be a threat. The legislation which I am introducing today has received considerable thought and considerable analysis. As I say, it picks up on legislation which Senator Durbin and I introduced on February 13, 2002. But it still requires a great deal more analysis and a great deal more thought, which we will give it in due course on the legislative process. We have altered our schedule in the Judiciary Committee to reserve July 11 for a hearing, the second day we are back--on that Tuesday we really swing into action--we will take up an analysis of Hamdan v. Rumsfeld in greater detail than we could do this afternoon in a short floor statement and with only a few hours to digest the 6 opinions and 177 pages. We will consider this legislation at that time. I ask unanimous consent that the full text of the bill be printed in the Congressional Record at the conclusion of my comments, and a short summary of the bill, which will enable the reader to follow without going through the extended text.

Mr. SPECTER

Mr. SPECTER. Yes.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have 5 minutes allotted to me. I spoke yesterday extensively on the pending legislation, and I will use my 5 minutes on another subject. The subject relates to an article in the Hill newspaper today, which is captioned, ``Holtz-Eakin Delivers Blow on Asbestos.'' Dr. Holtz-Eakin had been Director of the Congressional Budget Office and had testified at an earlier hearing on asbestos reform that the cost of the program would be between $120 billion and $150 billion, which was within range of the $140 billion allocated to the trust fund. But Dr. Holtz-Eakin later went to work for a foundation that was funded with $5 million by AIG Insurance Company and other insurers, where they had a vested interest in trying to defeat the bill. I have today written to the Hill and want to make these comments for all of my colleagues to hear. They can be most succinctly handled by my reading the letter that I am sending. It goes to the editor of the Hill: Dear Editor: Your June 27 article ``Holtz-Eakin Delivers Blow on Asbestos'' would have been more accurately captioned, ``Holtz-Eakin Tries to Change his Testimony after Being Hired and Paid by the Bill's Opponents.'' The fact is, as the notes of testimony disclose, Dr. Holtz- Eakin did not change his testimony when he said: ``The first statement, when I was Director of CBO, remains true today.'' In an earlier statement, which he submitted when he was Director of CBO, he said: ``CBO expects the value of valid claims likely to be submitted to the fund over the next 50 years can be between $120 billion and $150 billion.'' That conclusion puts the cost within the reasonable parameters of the $140 billion trust fund. Dr. Holtz-Eakin made an unsuccessful effort to say that the trust fund would not be terminated, as provided for in the legislation, if the trust fund ran out of money. Dr. Holtz- Eakin conceded: ``The administrator will have the option to terminate the fund. . . .'' Then Dr. Holtz-Eakin speculated: ``It is my judgment and my judgment alone that in the future Congress would continue this program. . . .'' That would obviously require a changed congressional decision since the bill stipulates the fund would be terminated if it ran out of money. It is only Dr. Holtz-Eakin's speculation that the program would be continued and then spend more money. The Hill article correctly noted that Dr. Holtz-Eakin's effort to change his testimony arose because he: ``became the head of a think tank funded by a foundation set up by one of the biggest opponents of asbestos reform bill, American International Group, an insurance giant better known by its acronym AIG.'' The Hill article then noted that Dr. Holtz-Eakin was invited to the Judiciary Committee hearing by the opponents of the bill and that the ``Coalition for Asbestos Reform,'' an organization funded by major insurance companies opposed to the bill, issued a press release on the day of his testimony claiming he was validating the Coalition's criticism. Obviously, it was pre-arranged between Dr. Holtz- Eakin and the Coalition since the Coalition had information in advance and was prepared to make the announcement in a press release the day of his testimony. Anyone, including the Coalition, can raise any objections they wish, but they ought to disclose the basis for Dr. Holtz-Eakin's effort to defeat the legislation because he, as The Hill pointed out, ``became the head of a think tank funded by the insurance company opponents of the bill.'' Dr. Holtz-Eakin's bias and conflict of interest renders his later testimony meaningless. It all shows how desperate the ``Coalition for Asbestos Reform'' is and how the Coalition is grasping at straws and buying testimony to try to defeat this important reform legislation. And then I signed the letter. I ask unanimous consent that the Hill article and the relevant points from the transcript be printed in the Record.

Mr. SPECTER

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

Mr. SPECTER

Mr. SPECTER. Mr. President, the Judiciary Committee, which I chair, has reported to the floor an amendment to the Constitution of the United States which would authorize legislation to prohibit burning of the American flag. The Supreme Court of the United States, in Texas v. Johnson in 1989 and again in United States v. Eichman in 1990, in a 5-to-4 decision ruled that the first amendment to the U.S. Constitution relating to freedom of speech would be violated by legislation which prohibited flag burning. At the outset of the debate on this amendment, it is vital to note that the pending amendment does not seek to alter the language of the first amendment. The first amendment of the U.S. Constitution protecting speech, religion, press, and assembly is inviolate, really sacrosanct. But that is not to say the decisions of the Supreme Court of the United States have that same status. We have, since the adoption of the U.S. Constitution in 1787 and the Bill of Rights, the 10 amendments, in 1791, held freedom of speech as one of our highest values, along with freedom of religion, freedom of the press, the right to assemble, and the right to petition the Government. But decisions by the Supreme Court of the United States are, in a sense, transitory. They have the final word, and we respect their judgment, but our constitutional process allows for amendments in a complicated way. It has to pass both Houses of the Congress by two- thirds vote and then be ratified by three-fourths of the States. So it is a high bar to change what the Supreme Court of the United States says the Constitution means. The five Justices who found the first amendment violated are Justice Brennan, Justice Marshall, Justice Blackmun, Justice Scalia, and Justice Kennedy. The four Justices in dissent were Chief Justice Rehnquist, Justice White, Justice O'Connor, and Justice Stevens. So had the Court been slightly differently constituted, we wouldn't be talking about a constitutional amendment. It is important to focus on the basic fact that the text of the first amendment, the text of the Constitution, the text of the Bill of Rights, is not involved. It is the decision by the Supreme Court, it is the decision where any one of five made a majority. It is that difference of opinion that is at issue, and it is important to note that when decisions are rendered by the Supreme Court of the United States, they are the ``opinion'' of the Court. There is no verity, there is no absolutism, unlike what might be contended for the Constitution itself, especially the first amendment. It is important to note that there have been many decisions by the Supreme Court of the United States which have limited freedom of speech under the first amendment. The first case which comes to mind is the famous opinion by Justice Oliver Wendell Holmes saying that an individual could not cry ``fire'' in a crowded theater. People have a right to speak, but there are limitations as to how people may exercise freedom of speech, and that is one limitation. A Supreme Court decision in Chaplinsky v. New Hampshire in 1942 had special significance when the Court decided that fighting words were not protected by the constitutional protection of freedom of speech. The defendant in a criminal case had used condemnatory curse words, a fight resulted, and he was convicted. The Court said freedom of speech did not go that far and upheld his conviction. The Court observed in that case a standard which is significant, and that is: It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. I believe that standard applies to flag burning. We have had other instances where the Supreme Court of the United States has limited freedom of speech. For example, on inciting unlawful conduct, you can say what you please, but you cannot incite others to unlawful conduct and then defend on the ground of freedom of speech. Obscenity cases are another line of decisions, complex decisions, conduct which is gauged by contemporary community standards and the question of whether the speech has its dominant appeal to prurient interests. It is pretty hard to define what that means. That was a definition I wrestled with consistently when I was assistant attorney of Philadelphia to make a determination as to where freedom of expression and freedom of speech crossed the line. On pornography, which is a lesser standard, you don't have to go to the level of obscenity on pornography if children are involved. There again, the first amendment protection for freedom of speech does not cover it. An individual in our society does not have the constitutional right to make false statements of fact, but that individual may be taken to a court of law, sued, and damages collected for slander, verbal false statements of fact, or libel, written false statements of fact. Similarly, the first amendment does not protect speech which constitutes threats of violence. And just last month in a widely noted case, the Supreme Court decided that governmental employees have limits on what their speech can contain. The Chaplinsky decision, which I cited a few moments ago, sets a standard which, as a generalization, notes that there will not be protection for utterances which are no essential part of any exposition of ideas and therefore are of slight social value. It is my opinion--and again, I denominate it as an opinion, just as the Supreme Court of the United States denominates its decisions as opinions. We all have our own opinions. We are all entitled to our own opinions. If there are enough opinions to the contrary of the five Supreme Court Justices--that is, the opinions of two-thirds of the Senate and two-thirds of the House of Representatives and three-fourths of the legislatures of the States--then we may make a modification of what the Supreme Court has said in declaring that flag burning is protected by freedom of speech. It is my sense that under the Supreme Court decision in Chaplinsky, we are dealing with conduct which is not an essential part of an exposition of ideas and does not have social value as a step to the truth, and that whatever is derived from it is clearly outweighed by the social interest in order and tranquility. It is my view that flag burning is a form of expression which is spiteful or vengeful or designed to antagonize, designed to hurt. It is not designed to persuade. Again referring to the opinion of perhaps America's greatest Jurist, Oliver Wendell Holmes, on the Supreme Court in the case Abrams v. United States, decided in 1919, Justice Holmes noted that time has upset many fighting faiths. Time has upset many fighting faiths, and ideas and concepts and doctrines which men and women think are veritable truths may turn out not to be so. That opinion which I studied in law school a few years ago made the deepest impression on me of any which I have ever read. I think that is really the hallmark of freedom of speech, and that is in the context of seeking to persuade the marketplace of ideas. When Holmes said that time has upset many fighting faiths, he was extraordinarily prescient in that declaration. In evaluating the speech issue and in evaluating what I believe is an appropriate resolution of the pending constitutional amendment, I think of the veterans in our society and I think of the veterans' expectation of the sanctity of the flag. I think of the flag as a symbol of what veterans fought for, what they sustained wounds for, what they sustained loss of limbs for, and what they sustained loss of life for. In being the chairman of the Senate Veterans' Affairs Committee for some 6 years and a ranking member a number of years beyond, I had more duties than most would on veterans' issues. The veterans, with some substantial justification, repeatedly made the point at our hearings that they were not treated right for the sacrifices they had made; that when it came to compensation and disability, the Nation which has called upon them to fight wars and sustain wounds and sustain loss of limbs, comrades who have given their lives, the Nation was not very appreciative or grateful or didn't reciprocate with the kinds of benefits to which the veterans thought and think they are entitled to. It is a continuing battle, given the budget limitations. The Congress of the United States is very much concerned about veterans' rights and veterans' benefits, and we make an effort, but in so many cases, it has been my judgment, reflected in my views and my votes and my chairmanship of the Veterans' Affairs Committee, that we are not sufficiently considerate, and not a matter of being generous but not sufficiently just with our veterans. When it comes to the issue of flag burning, I have heard many veterans express deep concern about disrespect for the American flag, which they equate as disrespect for them, disrespect for the sacrifices they and their buddies have made. I think of my brother's service in the U.S. Navy, and I think of Morton Specter, who served in the U.S. Navy in World War II. I think of the service of my brother-in-law, Arthur Morganstern, who served in the South Pacific for 31 months and came home to find a 2-year-old baby daughter from whom he had been separated for a protracted period of time, and fortunately came home in time. My own service stateside during the Korean war was something I was proud to do. I did not face the rigors of combat, although when you are in the service, you respond to what the service tells you to do. I also think of the service of my father, Harry Specter, an immigrant. It always makes me mindful of immigrants who have built this country. My mother, too, was an immigrant. She came at the age of 6 with her family from the Ukraine. I have had some comments about their contributions to this country in another context as we have talked about immigration reform, which is now pending before the conference committee of the House and Senate. My father came to this country at the age of 18, in 1911. The czar wanted to send him to Russia, and he wanted to go to Kansas. As I say sometimes in jest, it was a close call, but he got to go to Kansas. But he didn't know that when he sailed steerage from Europe to the United States, he had a round-trip ticket to France--not to Paris and the dancing girls, but to the Argonne Forest. It took exactly 30 days for the U.S. Army to induct Harry Specter in Fairbrook, NE, and ship him overseas. He didn't have a whole lot of training, but he was ``cannon fodder,'' as they expressed. These Doughboys were meant for the enemy German cannons. They all had a bull's eye painted on their back. He went to war, and he was wounded in action. He was struck by shrapnel, and he carried shrapnel in his legs until the day he died. When my father was in need of medical care, when he had a serious accident where a spindle bolt broke on a pickup truck when my sister was driving and rolled over and broke his arm, he was taken to the veterans hospital in Wichita, KS, where we lived. I was 7 at the time and would ride a bicycle out many miles from the residential section of town to where the veterans hospital was located. Now it is all built up. I had some exposure to the veterans there, and I have had exposure to veterans as I have traveled around Pennsylvania and on a trip I made in 1991 around the country to look at veterans' hospitals when I was on the Veterans' Affairs Committee to see if we had adequate care for the veterans who might come back injured from the gulf war. Fortunately, we did not have many casualties from the Gulf War in 1991. I visited the veterans at Walter Reed, as so many of us have, to try to give them a morale uplift and to tell them how much we appreciate their service. It is very difficult for those who go to visit them, with their artificial limbs and their loss of arms and their metallic legs. It is obviously disquieting to see them and realize how difficult, how tragic it is for them. Their spirits, by and large, are remarkable. But I think of our veteran population when I think about this amendment. I don't want to dwell on it overly, but I do not think it is an irrelevancy when we consider this flag protection amendment and consider what the expectations are. During the Memorial Day recess I had occasion to travel to Europe to visit veterans' cemeteries with the Veterans' Affairs Committee. Senator Craig, the chairman of the Veterans' Affairs Committee now, led a delegation with the distinguished Senator from North Carolina, Mr. Burr, who is presiding at the moment, and Senator Johnny Isakson from Georgia. I was along, and it was an enormously moving experience to see the rows of white crosses and the rows of Stars of David. We went to the cemeteries in the Netherlands. We went to the cemeteries in northern France not too far from the Argonne Forest where my father had fought. We went to the cemetery in Normandy and saw those steep cliffs and marveled at how our troops, on June 6, 1944, could scale those cliffs to lead to the invasion of Europe and free the world of the despotism of Nazi Germany and Hitler's annihilation of 6 million Jews and the treachery of Mussolini and the treachery of the war in the Pacific with the Japanese. I made a report to the Senate--as I do on my foreign travel--a week ago today. I noted in that report that when my father, Harry Specter, was hit by shrapnel in the legs, the possibility--as I saw in viewing the World War I cemeteries--noted that in World War I, there were 126,000 deaths; in World War II, 407,300 deaths; and, of course, Harry Specter was not in one of the cemeteries. But had the shrapnel hit him a little higher, Harry Specter might have been in one of those cemeteries and he wouldn't have been my father and I wouldn't have been. Of all the sobering thoughts, none can compare to that one. I have voted on the constitutional amendment in the past when, years ago, I voted in favor of the constitutional amendment to protect the flag, so these thoughts are not new to me or a change of heart. But it is my view that given the expectation of so many Americans, especially American veterans, and given the fact that the text of the first amendment is in no way altered by this amendment, but it is only a decision by the Supreme Court of the United States, the opinion of five that freedom of speech precludes flag burning, and the opinion of four Justices that freedom of speech should not preclude flag burning, it is my opinion that the opinions of the five Justices ought not to dominate, and the opinions of the four Justices ought to dominate, provided that their opinion is the opinion of two-thirds of this body, two-thirds of the House, and the opinion of three-quarters of the State legislatures, which provides the constitutional basis for a constitutional amendment. I ask unanimous consent that the full text of my printed statement be printed in the Record.

Mr. SPECTER

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

Mr. SPECTER. Mr. President, I have sought recognition to speak on the nomination of Ms. Sandra Segal Ikuta to be a judge for the U.S. Court of Appeals for the Ninth Circuit. Ms. Ikuta was nominated by President Bush to be a judge for the Ninth Circuit on February 8, 2006. Her hearing was held on May 2, 2006. Thanks to the cooperation of the distinguished ranking member, Senator Leahy, and all members of the committee, we processed her through on May 25, 2006, and she is now ready for a confirmation vote by the Senate. Ms. Ikuta has an extraordinary record. She received a bachelor's degree from the University of California, Phi Beta Kappa, a master's degree from Columbia University School of Journalism, and a law degree from the University of California. She clerked for Judge Kozinski of the Ninth Circuit. Ms. Ikuta then clerked for U.S. Supreme Court Justice Sandra Day O'Connor. Following her Supreme Court clerkship, she went to work for O'Melveny & Myers as an associate, becoming a partner in 1997. She specialized in environmental law, including serving as co- chair of the firm's environmental practice group. She then entered public service as Deputy Secretary and General Counsel to the California Resources Agency in Governor Schwarznegger's administration. She has written extensively in the field of environmental law, served as chair of the environmental section of the Los Angeles County Bar in 2001 and 2002, and she received a unanimous ``well qualified'' rating from the American Bar Association. I urge my colleagues to confirm her. Mr. President, before yielding to my distinguished colleague, let me again thank him for all of his cooperation, and we will soon celebrate a year and a half of very productive, very cooperative, very collegial work on the Senate Judiciary Committee.

Mr. SPECTER

Mr. SPECTER. Mr. President, in the 2 minutes I have left, I would like to comment very briefly on a trip made by the Veterans' Affairs Committee to oversee World War I and World War II cemeteries in the Netherlands and France. The chairman of the committee, the distinguished Senator from Idaho, Mr. Craig, organized the trip, with Senator Burr, Senator Isakson, and myself. Let me say to you that it was inspirational to visit the cemeteries-- I had never done that before--to see so many marble crosses and marble stars of David. It was especially poignant for me because my father fought in World War I. He left Russia at the age of 18 in 1911 to escape the tyranny. The Czar wanted to send him to Siberia. He wanted to go to Kansas. It was a close call. I say that jokingly. He was proud to serve in the U.S. Army as a Doughboy. It took all of 30 days for him to be inducted, until he was shipped overseas, really, with a big bull's eye on his back as cannon fodder by all means. When I was growing up, he would regale my brother, my two sisters, and me with World War I songs, such as ``It's A Long Way To Tipperary.'' I recall his singing the song about the bugler in the famous World War I song, ``Oh, How I Hate To Get Up In The Morning.'' It said that if given a chance, he would have shot the bugler. And my father liked to sing that song. He got up early a lot of mornings. Fighting in the Argonne Forest, he was wounded in action by shrapnel fire. He carried shrapnel in his legs until the day he died. Had the shrapnel hit him a little higher, Harry Specter might have been in one of those cemeteries and he wouldn't have been my father. It was quite an inspirational trip. I ask unanimous consent that my written statement be printed in the Record.

Mr. SPECTER

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

Mr. SPECTER

Mr. SPECTER. Mr. President, in evaluating our needs in the Department of Defense authorization bill, key factors will be our relationship with Iran and North Korea as we face two major problems of two nations: one having nuclear weapons and the other appearing to be intent on developing nuclear weapons. I applaud the President's recent move to agree to bilateral negotiations with Iran subject to certain conditions, and I think he was precisely correct in saying that notwithstanding the difficulties with Iran and their apparent intransigence, that all diplomatic efforts ought to be explored before any consideration is given to the use of military force. I think that is a way to approach the international issues. While we deal with some of these tough adversaries, all options should theoretically remain on the table. But to the extent that these problems can be solved through diplomacy, that is obviously the preferable course. In dealing with countries such as Iran and North Korea, it is difficult when the United States has branded them as the ``axis of evil.'' But President Reagan invited Soviet leader Leonid Brezhnev to a dialogue within weeks after labeling the U.S.S.R. as the ``evil empire.'' So it is possible to have some tough dialogue and some tough rhetoric and, at the same time, work toward negotiations, no matter how difficult the adversary or potential adversary may be. Early in my activities and public service, when I was an assistant district attorney in Philadelphia, I had an occasion to interview inmates at the State prison, Rockview, who were under the death sentence. Joining the district attorney's office, I was low man on the totem pole, and the low man got the job of traveling to the State prison and talking to people under the death penalty, people who wanted to have their death sentences commuted. It was quite an experience. Very, very tough people who had committed heinous crimes, outrageous lives, bad backgrounds, about as tough a gang as you could find off the streets of Philadelphia, Pittsburgh, and other parts of the State who had committed murders so atrocious that they had gotten the death penalty. That taught me a lesson, leading me to the conclusion that if you could talk to people like that, you could talk to anybody. You don't have to agree with people, but there is no reason not to talk. I am aware that it is a significant transfer to apply that kind of an experience to international diplomacy, but I think it has some weight. There are those who oppose talking to Iran or North Korea on a bilateral basis because we don't want to recognize them, we don't want to give them any status. I think a comprehensive answer was made to that by Richard Armitage, who was Deputy Secretary of State right under Colin Powell during President Bush's first term. This is what Mr. Armitage had to say: It appears that the administration thinks that dialogue equates with weakness, that we have called these regimes evil and, therefore, we won't talk to them. Some people say that talking would legitimize the regimes. But we are not trying to change the regimes, and they are already legitimatized in the eyes of the international community. So we ought to have enough confidence in our ability as diplomats to go eye-to- eye with people, even though we disagree in the strongest possible way, and come away without losing anything. Our relationship with Iran has obviously been extremely difficult since the Shah was deposed in 1979. And Iran is a proud country with a proud history. There is, at least, some part of the motivation to become a nuclear power, nuclear military force to be with the big boys as a matter of international status. I think if we were willing to meet with Iran in a straightforward, diplomatic way as negotiating equals-- the United States is never going to be equal with Iran because of the great difference in our power in the international field--but I do believe that our foreign policy would be enhanced if we treated foreign leaders, foreign countries with more dignity and respect. I think it would be a significant step forward if Iran were treated as a diplomatic and negotiating equal, that it might take some of the pressure off their determination to be a nuclear military power or, at a minimum, I think it is worth a try. I made my first trip to the Mideast back in 1964, and in the intervening 42 years I have made almost 30 trips to the region. I tried to go to Iran shortly after the Iran-Iraq war ended in 1988, and my efforts to go there have never been successful. It is possible to travel to Iran as a tourist, but it is not--they are not receptive to having an official visit. In the absence of being able to go to Iran, I have contacted and had discussions with two of the Iranian Ambassadors to the United Nations. I made my first contact back in May of the year 2000, a little more than 6 years ago, and I discussed with the Iranian Ambassador to the United Nations the possibility of an exchange of parliamentarians; that a group of Members of the Senate and the House of Representatives might meet with a group of parliamentarians from the Iranian Parliament. I invited the Iranian Ambassador to the United Nations to a dinner in my hideaway, my office here in Washington, attended by a number of Members. I then met with his successor in August of 2003 and had moved toward concrete plans to have a group of Iranian parliamentarians meet with Members of Congress in Switzerland in January of 2004, but unfortunately, those plans fell through because there was a concurrent, harsh exchange of rhetoric, and the Iranians were not willing to meet at that time. There was a significant development when the Iranian President, on May 8 of this year, sent President Bush an 18-page letter, and the President appropriately responded, showing interest in having negotiations with Iran. We had been pursuing efforts to have diplomatic pressure applied by Iran in concert with our European allies, trying to involve China and trying to involve Russia, and then Secretary of State Rice signified a shift of U.S. policy by indicating our willingness to negotiate directly with Iran by putting conditions on that offer to negotiate. To repeat, I believe that we ought to be willing to negotiate without conditions. We have similarly sought to deal with North Korea in collaboration with other nations, including Japan and South Korea, China, and Russia, and here again, it would be my hope that we would seek and be willing to have those talks without preconditions. I was part of a CODEL led by Senator Biden in August of 2001, at the time when Senator Biden was chairman of the Foreign Relations Committee, and we traveled to the Far East and had plans to meet with the North Korean President, and that did not materialize because at that same time, the North Korean President made an unexpected trip to China. In looking toward the future, it is my hope to be able to go to North Korea. I think there is a climate there of receptivity to meeting with Members of Congress, and that is a course which I intend to pursue. I have found that in the meetings I have had on foreign travels that, at least in my opinion, they have been a bit productive. In the 25 years of my service in the Senate, I have been on the Appropriations Subcommittee on Foreign Operations, and for 8 years I served on the Intelligence Committee, chairing that committee during the 104th Congress in 1995 and 1996, and those committee assignments and my interests generally in foreign policy have taken me to some 93 countries. One of the countries I have visited on many occasions is Syria. I have visited Syria on 15 trips. On nine occasions I have had an opportunity to meet with President Hafez al-Assad. I was the only Member of Congress to accompany the Secretary of State to his funeral in the year 2000, and I have since had an opportunity to visit on three occasions with President Bashar al-Assad. In the course of those meetings I got to know President Hafez al- Assad. The first meeting was in 1988, and it lasted for approximately 4\1/2\ hours. I had long heard about President Assad's willingness to engage in extended discussions. We covered a wide variety of subjects. We talked about Syrian relations with Israel. We talked about the Palestinian problems. We talked about the Iran-Iraq war. We talked about U.S.-Soviet relations. On a number of occasions I suggested that I had taken too much of his time. On each occasion he would say: No, I am interested in talking more. In the course of meeting President Hafez al-Assad on some nine occasions, it developed into a cordial relationship, even, you might call it, a joking relationship. I would urge President Assad to meet with Israeli Prime Ministers and say that our meeting, always attended by the local photographers, would appear on the front page of the Syrian newspaper, the Damascus newspaper, but if President Assad would meet with the Israeli Prime Minister, it would be world news. I told him when Prime Minister Rabin and Foreign Minister Perez and Palestinian Authority Chairman Arafat got the Nobel Peace Prize, if he would work for peace with Israel, that he would get the Nobel Peace Prize in Stockholm. He replied: Well, I might be welcome in Stockholm under the arrangement you suggest, but I might not be able to get back to Damascus. In 1988 I suggested to President Assad that he permit the Jewish women in Syria to leave the country because there were very few Jewish men for them to marry. That was a subject which Congressman Stephen Solarz had undertaken, and I was carrying forward some of what Congressman Solarz had sought to do. President Hafez al-Assad said to me that anyone who came to claim a Syrian Jewish bride would be permitted to take the bride with him out of the country. I relayed that message to the large Syrian community in Brooklyn, NY. Nothing much ever came of it. But in 1992, President Assad permitted all the Jews to immigrate out of Syria. My exhortations might have had some effect--who knows as to what that might have been. I consistently would urge President Assad to negotiate with Israel, and he would say that he would not do so but entertained the possibility of negotiations with Israel if sponsored by the big 5: sponsored by the United States, the Soviet Union, Britain, France, and the China. Israel was unwilling to engage in those negotiations because only the United States would be neutral or perhaps friendly toward Israel. Finally, President Assad did agree to go to Madrid, in 1991, to negotiate with Israel. I had extensive discussions with a very distinguished Syrian diplomat, Walid al-Moualem. When Benjamin Netanyahu was Prime Minister of Israel, in 1996, upon taking office Prime Minister Netanyahu made a forceful declaration that Israel and he would hold Syria responsible for the actions of Hezbollah in southern Lebanon. That led to a realignment of the Syrian military, and for a time it looked as if that was a tense situation. I was in Israel at that time and was asked by Prime Minister Netanyahu to carry a message to President Assad that Israel wanted peace. I conveyed that message to President Assad, and later, when I met with Walid al-Moualem, the Syrian Ambassador to the United Nations--met with him here in Washington--he told me that the conversations I had and the message I carried from Prime Minister Netanyahu to President Assad had been, as he put it, ``helpful in deescalating the dangerous tensions.'' Ambassador Moualem later told me I had gained the trust and confidence and personal relationship with President Assad because, as he put it, ``they viewed me as being objective'' even though, as he put it, ``nobody could question my support for Israel.'' I am not making any major contentions, or making any claims as to what effect these visits would have had. But every little bit helps. In getting to know Assad and getting to know his son, it does provide an opportunity for a statement as to our values in the United States, what we would like to see happen. I think it is helpful and certainly can do no harm. In January of 1989, I made my first trip to Iraq and returned a year later with Senator Shelby. I will conclude briefly and will supplement my remarks today with more specification at a later time on exact dates, based on trip reports which I make after coming back from each of my travels. I had referenced the conversation which Senator Shelby and I had with Saddam Hussein in January of 1990. I do not know if it would have ever have been possible to have dissuaded Saddam Hussein from his practices of aggression, but on that occasion Senator Shelby and I had a professional conversation with him, and it is my view conversations of that sort have the potential to be helpful. I have had occasion to visit with Palestinian Authority Chairman Yasser Arafat on some eight occasions. I have conveyed messages from Prime Minister Netanyahu to Chairman Arafat about the terrorism issue. Whether it had any effect or not I do not know. I have had occasion to visit Cuba on three occasions, meeting with President Fidel Castro on a wide range of conversations, urging him to have respect for human rights. I questioned him about the deployment of Soviet missiles in 1962, asking about possible involvement in the assassination of President Kennedy, which he denied in talking to him about assassination efforts. I believe there is a fruitful basis to have cooperation with Cuba on drug interdiction, and it is something I have pursued and intend to pursue in the future. I have had occasion to visit China on four visits. I have had discussions with the Chinese leader about their failure to respect human rights, about the detention of a librarian from Dickerson College, who later was freed after a condemnatory resolution was filed in the Senate, and I have taken the lead in urging Temple University to establish a school in Beijing to inform Chinese leaders about the due process of law. I had an opportunity to meet with President Chavez in Venezuela last August. There was a controversy on drug enforcement. The Venezuelans would not meet with our ambassador, and I asked for a meeting of President Chavez with our ambassador. I met with the Venezuelan Minister of the Interior. I don't have time to summarize it now, but President Chavez was willing to discuss a protocol for drug cooperation. I believe the talks with people, even our tough adversaries, our toughest adversaries, can be fruitful. As we structure our legislation for the Department of Defense and look later to the Department of Defense appropriations subcommittee, a subcommittee on which I serve, it is my hope that the United States would be vigorous in the pursuit of negotiations with Iran to diffuse the risk there, to try to find a way of recognizing them in respect and dignity, persuading them not to become a nuclear power, and to have bilateral talks with North Korea on the same unconditional basis--again treating them with respect and seeking to find a way to have an international protocol which would contain and control the significant threat posed by North Korea. As I say, Mr. President, I have generalized. Most of what I have said has come from floor statements which I have made in the past 25 years. And I will document this further at a later time when there is more time for the presentation. I thank the Chair and yield the floor.

Mr. SPECTER

Mr. SPECTER. Mr. President, this is truly a unique day in the life of the Senate, with the spotlight shining on Senator Robert Byrd in recognition of an enormous achievement, being the longest serving Senator in the history of the body. It is a remarkable achievement. Senator Byrd started his political career with an election in 1946, 60 years ago, and is still going strong. He served in the Senate at the same time that Harry S. Truman was President of the United States. Just think about that for moment. This is a man whose service has spanned the Presidencies of President Truman, President Eisenhower, President Kennedy, President Johnson, President Nixon, President Ford, President Carter, President Reagan, President Bush, President Clinton, and President Bush. It is quite an accolade. And Senator Byrd accurately states that he hasn't served under any President, however, he has served with Presidents. He is a scholar and devotee of the doctrine of separation of powers, something which seems to have been forgotten lately. But when the issue arose as to the line-item veto and the constitutional amendment for the balanced budget, Senator Byrd has been vociferous in defending the prerogatives of the Congress of the United States. He even goes so far from time to time to remind people that article I of the Constitution is for the Congress. You don't get to the executive branch until you get to article II. You don't get to the judicial branch until article III. In many ways the Supreme Court has rewritten the sequence of the Constitution taking primacy. There is an effort on the expansion of Executive power, but Senator Byrd is the bulwark for separation of powers. To think that he was here when Jack Kennedy was here, as well as when Lyndon Baines Johnson was here--about whom so much has been written as the master of the Senate. There will be a sequel to that, and it will be about Bob Byrd. Senator Byrd was here when great men like Lyndon Johnson and Jack Kennedy strode these corridors for so many years. It is an enormous slice of history. As a newcomer to the Senate, I watched Senator Byrd very closely. There is a lot to be learned from Senator Byrd. Senator Byrd was chairman of the Appropriations Committee when I was one of the younger members of the Appropriations Committee. One day, I thought Senator Byrd's allocations didn't match the budget resolution and I told him. It is sort of untoward to disagree with the chairman. I saw a magnanimity in Senator Byrd to listen to one of the younger Senators. I even called for a vote. The vote was 26 to 3. People said it was a great accomplishment to get two other Senators to join me, Alfonse D'Amato and Bob Kasten. We only lost 26 to 3, but it was considered a victory, which is a testament to Senator Byrd's power. Senator Byrd said to me on that day: Some day, you will be chairman of the Appropriations Committee and you can make the allocations. I thought it entirely farfetched at that time that I would ever be chairman of the Appropriations Committee, but it may happen. I am next in line behind Senator Thad Cochran. It will be quite a formidable challenge because Senator Byrd continues to be ranking Democrat on the committee. To come up against this titan, this legend, he will probably do more to make the allocations if, as, and when I become chairman. Senator Byrd has been a master tactician. I recall one early morning, about 3 a.m., when we Republicans were carrying on a filibuster. I believe it was on campaign finance reform. Senator Dole gathered us all together in a remote spot and said: Guys, don't show up on the Senate floor. Make Senator Byrd maintain a quorum. For those who don't know the Senate rules, they are sufficiently complicated and we would not expect C-SPAN II watchers to know, if anybody is watching on C-SPAN II. But you have to have a quorum on the floor to conduct business, or somebody can suggest the absence of a quorum, and it just stops. So Senator Byrd had this idea about having some Republicans on the floor. Knowing the rules as he did, he directed the Sergeant at Arms to execute warrants of arrest for absent Senators. I have never seen this in my long tenure. Remember that, Senator Byrd?

Mr. SPECTER. Now we have confirmation. I have called a witness here. The Sergeant at Arms was a little fellow, Henry Giugni. He started to patrol the halls. He came upon Senator Lowell Weicker. Now, Henry was about 5-foot-4, and Lowell Weicker was 6-foot-4. Lowell was at his fighting weight of about 240 at the time. It was about 3:30 in the morning. Do you know what happens with Senators at 3:30 in the morning? I won't say on the Senate floor. The Sergeant at Arms decided not to arrest Lowell Weicker. He made a very wise judgment. Instead, he went knocking on Senate doors. Senator Robert Packwood made the mistake of answering the door. Senator Packwood compelled them to carry him out of his office. He agreed to walk here, but he insisted on being carried into the Senate Chamber. I don't think Senator Byrd got his quorum, but he got his man, Senator Packwood. I once had the temerity to engage Senator Byrd in a debate. I have watched Senator Byrd very closely when he would control the floor with the parliamentary maneuver of getting unanimous consent before yielding the floor, which gave him the right to the floor. I had read the rule book, and Senator Byrd contended that he could do that without unanimous consent if there had been no objection. I thought I had watched him with the rules to the contrary and engage him in a lengthy debate. I did not win that debate, but it was a great learning experience. Senator Byrd commanded the floor with great authority. In the old days, we used to have sessions that went all night. Senator Byrd was sitting in that chair, and he rose at about 12:18 a.m.--this is another true story; you get very few true stories out of Washington. We were all enervated. Some of us were even tired, but not Bob Byrd. He rose from his chair and he said: I ask unanimous consent that I may speak as long as I choose. A Senator in this chair, whom I will not identify, rose as if to object. Senator Byrd looked at him as if his eyes like were laser beams, and the Senator sat down. Past midnight, Senator Byrd had unanimous consent to speak as long as he chose. It wasn't too long, but it was a great display of fortitude and authority. My final comment about Senator Byrd is about the debates we have had on constitutional law. His scholarship on the institution is unparalleled, and that is a record which will never be broken. It is pretty hard to say ``never,'' but when one looks at the volumes of his work, when one looks at the magnitude of his speeches--he used to speak every Friday afternoon for as long as he liked. He spoke to an empty Chamber, but he spoke to a full history book. Senator Byrd once said to me that if he became President, he would make me his Attorney General. May the Record show that Senator Byrd is nodding in the affirmative, and Senator Byrd, if you become President, I expect you to live up to that promise. I yield the floor.

Mr. SPECTER

Mr. SPECTER. We are operating under some time pressures because there are Senators who have other commitments. We wanted to call the vote at 2 o'clock. It is 2:01 now. I believe the unanimous consent request has been made that the votes start immediately and that the subsequent votes be 10 minutes each.

Mr. SPECTER. Have the yeas and nays been ordered on all of the nominations?

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

Mr. SPECTER. Mr. President, I wish to speak briefly--for less than 2 minutes--on the four nominees. They have been cleared by the Judiciary Committee, and I ask unanimous consent that their resumes be printed in the Record. They are all well qualified, and I urge my colleagues to confirm them. Noel L. Hillman Nominee, U.S. District Court for the District of New Jersey Birth: 1956; Red Bank, New Jersey. Legal Residence: Virginia. Education: 1978-1981; Monmouth College, B.A. degree. 1981- 1985; Seton Hall University School of Law, J.D. degree. 1985- 1998; New York University School of Law, L.L.M. degree. Bar Admittance: 1986; New Jersey. 1990; New York. Experience: 1992-present; U.S. Department of Justice. 2003- 2006; Public Integrity Section, Senior Counsel to the Assistant Attorney General; Chief. 2002-2003; Acting Chief. 2001-2002; Principal Deputy Chief. 2000-2001; Criminal Division, United States Attorney's Office, District of New Jersey Deputy Chief. 1999-2000; Campaign Finance Task Force Trial Attorney. 1992-2001; United States Attorney's Office, District of New Jersey, Assistant U.S. Attorney. 1988-1992; Lord Day & Lord Associate. 1986-1988; U.S. District Judge Maryanne Trump Barry, Law Clerk. 1986; Hillman & Sullivan, Associate. Peter G. Sheridan Birth: April 21, 1950; Cambridge, Massachusetts. Legal Residence: New Jersey. Education: 1968-1972; St. Peter's College B.S. degree. 1974-1977; Seton Hall University School of Law, J.D. degree. Bar Admittance: 1977; New Jersey. 1980; New York. Experience: 1977-1978; Law Clerk to the Honorable James J. Petrella, Superior Court of New Jersey, County of Bergen. 1978-1981; Port Authority of New York/New Jersey, Office of New Jersey, Solicitor Attorney. 1981-1984; McCarthy and Schatzman, Associate. 1984-1987; Atlantic City Casino Association, Vice President and General Counsel. 1987-1990; Office of Governor Thomas Kean, Director of Authorities Unit. 1990-1992; Cohen, Shapiro, Polisher, Shiekman, & Cohen, Of Counsel. 1992-1993; Cullen and Dykman. 1994-1995; Partner. 1993-1994; N.J. Republican State Committee, Executive Director. 1995-present; Graham, Curtin & Sheridan, Shareholder/Director. Thomas L. Ludington Birth: December 28, 1953; Midland, Michigan. Legal Residence: Michigan. Education: 1972-1976; Albion College, B.A. degree, cum laude. 1977-1979; University of San Diego School of Law, J.D. degree. Bar Admittance: 1980; Michigan. Experience: 1980-1994; Currie and Kendall, P.C., Associate/ Partner. 1994-Present; 42nd Circuit Court, State of Michigan, Judge (Chief Judge since 1999). Sean F. Cox District Court for the Eastern District of Michigan Birth: September 24, 1957; Detroit, Michigan. Legal Residence: Michigan. Education: 1975-1979; University of Michigan, B.G.S. degree, 1980-1983; Detroit College of Law, J.D. degree. Bar Admittance: 1983; Michigan. Experience: 1983; James Flynn, P.C., Law clerk. 1983-1984; Self-employed. 1984-1989; Kitch, Saurbier, Drutchas, Wagner & Kenney, Associate. 1989-1990; Bloom & Kavanaugh, Associate. 1990-1996; Cummings, McClorey, Davis & Acho, P.C., Partner. 1996-present; Third Judicial Circuit Court, State of Michigan, Circuit Judge.

Mr. SPECTER

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

Mr. SPECTER. Mr. President, I have sought recognition to oppose S.J. Res. 1, known as the marriage amendment. I do believe marriage is a sacred institution between a man and a woman. I believe the Congress of the United States has acted responsibly on the Defense of Marriage Act. In 1996, it passed this body with only 14 dissenting votes. I believe that does protect the institution of marriage. I believe former Senator Barry Goldwater said it comprehensively and succinctly when he said that government ought to be kept off our backs, out of our pocketbooks, and out of our bedrooms. This is a matter which ought to be left to the States, and the States are taking care of it. Nineteen States now have constitutional amendments protecting marriage solely between a man and a woman. Twenty-six other States have statutes designed to protect traditional marriage by defining marriage only as a union between a man and a woman. Five States have no statutory or constitutional protection for traditional marriage, only five: Massachusetts, New Jersey, New Mexico, New York, and Rhode Island. The voters in seven States--Alabama, Idaho, South Carolina, South Dakota, Tennessee, Virginia, and Wisconsin--will vote on constitutional amendments this year. Another five State legislatures-- Colorado, Indiana, Iowa, Massachusetts, and Pennsylvania--are considering sending constitutional amendments to voters in 2006 or 2008, and ballot initiatives are currently underway in three States-- Arizona, Florida, and Illinois. Six States--California, New Jersey, Connecticut, Hawaii, Maine, and Vermont--have adopted a domestic partnership or civil union law, each without any mandate from the courts, except for in Vermont, where the State supreme court did intervene. There are many lawsuits pending to work on this issue within the context of States' rights. Nine States face lawsuits challenging traditional marriage--California, Connecticut, Iowa, Maryland, Nebraska, New Jersey, New York, Oklahoma, and Washington. In four of those States--California, Maryland, New York, and Washington--trial courts have found a right to same-sex marriage in State constitutional provisions relating to equal protection and due process, in each case relying in part on the Massachusetts decision. State supreme courts will decide appeals of those decisions, presumably in 2006 or 2007. There are also a number of Federal cases involving this issue. In Nebraska, a Federal district court found unconstitutional a State constitutional amendment passed by 70 percent of Nebraska voters. The U.S. Court of Appeals for the Eighth Circuit heard arguments on the State's appeal in February of this year. Federal district court challenges to the Federal Defense of Marriage Act are pending in Washington and Oklahoma, and cases were previously filed in Florida. The Supreme Court of the United States has emphatically and repeatedly declared that marriage is a matter for the State courts. The Supreme Court recognized ``domestic relations as `an area that has long been regarded as a virtually exclusive province of the States' '' in Zablocki vs. Redhail in 1978. In 1859, going back a century and a half, in Barber vs. Barber, the Supreme Court of the United States expressly ``disclaim[ed] altogether any jurisdiction in the courts of the United States upon the subject of divorce. . . .'' Less than 20 years later, in Penoyer vs. Neff, 1878, the Court reaffirmed that the States have the exclusive right to define the requirements of marriage and said that ``[t]he State . . . has [the] absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be treated, and the causes for which it may be dissolved.'' The matter of marriage is solely within the province of States, as are the divorce laws. What would be next if this amendment is passed dealing with the States? Rules on child custody cases? Adoption regulations? Or probate laws to determine who is entitled to inherit property? Like these other issues, this is a quintessential matter for State control. It is important to note that in the Defense of Marriage Act, there is a specific provision that States need not grant full faith and credit. The law specifies as follows: No State shall be required to give effect to any public act, record, or judicial proceeding of any other State respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State or a right or claim arising for such relationship. So we have the law emphatically set out that the courts have consistently held and the Supreme Court of the United States itself for more than a century and a half has said that marriage is a matter for the States. We know that when Massachusetts or any State acts to the contrary, that the action of Massachusetts will not be entitled to full faith and credit. We know that there are many lawsuits now litigating this matter, so that the relationship of marriage is being adequately handled by the States. If it should become necessary for the consideration at a later date of a constitutional amendment to be considered, there would be ample time to do so. It is important to note the avalanche of statements by highly respected people in the tradition of what former Senator Goldwater said, that we ought to keep the government off our backs, out of our pocketbooks, and out of our bedrooms, as a matter of privacy and as a matter of tolerance--two very highly placed values in our society. During the 2000 election campaign, Vice President Cheney had this to say: The fact of the matter is that we live in a free society, and freedom means freedom for everybody . . . It is really no one else's business in terms of trying to regulate or prohibit behavior in that regard . . . I think states are likely to come to different conclusions, and that's appropriate. That was the Vice President. The distinguished conservative academic professor James Q. Wilson had this to say: The states should . . . decide about gay marriages . . . Though I oppose gay marriage, voters in some states may approve it. If they do, we will have a chance to learn what it means in practice, with the costs and benefits falling on people who have accepted it. Moreover, . . . since feelings run high on this matter, it would be a mistake to let it be decided as the right to abortion was decided. If there were the gay marriage equivalent of Roe v. Wade or a constitutional ban on it, we would infect the nation with the divisive anger that followed Roe and our earlier attempt at alcohol prohibition. Professor Richard Epstein, University of Chicago Law School, had this to say in the Cato Institute's article, ``Live and Let Live'': The question is whether ``the majority of the public [should] impose its will on a minority within its midst in the absence of any need for collective decision. The claim for same-sex marriage is no weaker than any other claim of individual rights on personal and religious matters . . . The path to social peace lies in the willingness on all sides to follow a principle of live-and-let-live on deep moral disputes. Defenders of the illiberal Marriage Amendment should look to their churches, not Congress and the states, to maintain the sanctity of the marriage. Professor Dale Carpenter at the University of Minnesota Law School, publishing in the Cato Institute Policy Analysis, had this to say: An amendment banning same-sex marriage is a solution in search of a problem . . . A constitutional amendment defining marriage would be a radical intrusion on the nation's founding commitment to federalism in an area traditionally reserved for state regulation, [that is] family law. There has been no showing that federalism has been unworkable in the area of family law. Richard Posner, the distinguished Federal judge in the Seventh Circuit said the solution for gay marriage ``is to submit it to social experimentation. A great advantage of our Federal system is that it enables large-scale social experiments.'' The distinguished columnist, Andrew Sullivan, writing as the Columnist for the New Republic on the National Review Online, said the marriage amendment ``tramples on any notion of federalism, . . . egregiously violates States' rights, and . . . seeks to impose a uniform settlement on an entire country in perpetuity. The amendment is more typical of the excesses of modern liberalism than anything vaguely conservative.'' George Will of the Washington Post put it succinctly, saying that the marriage amendment ``is unwise for two reasons. Constitutionalizing social policy is generally a misuse of fundamental law. And it would be especially imprudent to end State responsibility for marriage law at a moment when we require evidence of the sort that can be generated by allowing the States to be laboratories of social policy.'' Mr. President, I suggest that the evidence and judgments against this marriage amendment are powerful and overwhelming in terms of our traditional view of tolerance, our traditional view of privacy. The fundamental concept of federalism reserves all power to the States and the individuals that are not specifically granted to the Federal Government. This is especially so in a context like marriage, which is a quintessential issue for determination by the States, like adoption, like divorce, like child custody, like probate--these are all matters for the State. I brought this matter to the floor with the calculation that the Judiciary Committee ought not to bottle up matters, because the Constitution says these issues are to be decided by the Senate and not by the Judiciary Committee. We have an unfortunate precedent of the Judiciary Committee bottling up legislation, a precedent which the Judiciary Committee today will not follow. We will report such matters out, even where the individual Members voting may not agree with them. That is a view that I have personally held as long ago as 1987 when I voted to send Judge Bork's nomination to the Supreme Court to the floor of the Senate, even though I strongly objected to his confirmation as a Supreme Court Justice. But it seemed to me then, as it seems to me now, that the Constitution requires that decision to be made by the full Senate. In 1957, the Senate Judiciary Committee had no rules. The chairman of the committee, James Eastland, wanted to bottle up civil rights legislation, and he explained the inactivity of the Judiciary Committee as follows: Well, a committee that has no rules, the Senate rules govern. The Senate rules provide that to file a cloture petition must be signed by 16 Senators. So we had an unlimited debate in the Judiciary Committee. We had 15 members, so there wasn't any way anyone could file a cloture petition. Accordingly, the civil rights bill was defeated by filibuster in committee. After President Eisenhower introduced the bill that later became the Civil Rights Act of 1960, it eventually became was clear that Chairman Eastland again would not release the civil rights bill from the Judiciary Committee. In order to get the bill to the floor, the civil rights bill was offered on the Senate floor on February 15, 1960, as an amendment to a minor bill concerning the leasing of a surplus U.S. Army building to a school district in Missouri. It is curious that the lease of a school building in Missouri would be the jurisdictional base for the Civil Rights Act. In 1964, in order to avoid Chairman Eastland's tactics, the Senate voted 54 to 37 to bypass the Judiciary Committee altogether and place the House bill directly on the Senate calendar. In the action when the Judiciary Committee voted S.J. Res. 1 out of committee last month, my distinguished colleague, Senator Leahy, noted that, unless we reported the resolution out of Committee, it was going to be brought to the floor under rule XIV, which is the leader's prerogative. Senator Leahy stated that he felt it preferable that the Judiciary Committee act in our traditional way and vote. I thanked him at the time and I thank him now. My view is that the matters ought not to be bottled up in committee, and the precedent cited about Chairman James Eastland, going back 40 years ago, is ample precedent that matters ought to come to the Senate floor. It is my hope that this will not be a lengthy debate. We have considered this matter before and it carried votes only in the forties, far short of the 60 necessary for cloture, and far short of the 67 necessary to pass a constitutional amendment. In the context where we have many pressing and important matters, it is my hope that our colleagues will come to the floor, debate the issue so that the Senate can work its will and we can proceed to other important matters for the United States Senate. The chairman of the Constitutional Law Subcommittee, Senator Sam Brownback, will be in charge of managing the amendment for those who favor. Senator Leahy and I can handle the management for those in opposition. I thank the Chair and yield the floor.

Mr. SPECTER. If I may comment, I thank the Senator from Colorado. That would be fine for him to manage until Senator Brownback arrives.

Mr. SPECTER

Mr. SPECTER. Mr. President, I voted against General Hayden for the position of Director of Central Intelligence as a protest vote against the administration's policy of not informing the Congress, with special emphasis on the Judiciary Committee, in a way which enables the Congress and the Judiciary Committee to do our constitutional job on oversight. I have no quarrel with General Hayden. He is a man with an outstanding record. I have no objection to his retaining his military status. He has testified in a way, before the Intelligence Committee, which was candid. I would be especially pleased to support a fellow Pennsylvanian. But in light of what the administration has done on the NSA program, which he has headed for many years, I feel constrained to vote ``no'' as a protest. The administration has not complied with the National Security Act of 1947, which requires notification of all members of the Intelligence Committee. That was only done in the few days prior to the confirmation hearings on General Hayden. In fact, the administration for years notified only the so-called Gang of 8, the majority and minority leaders of the House and Senate, and the chairmen, vice chairman, and ranking members of the Intelligence Committees. Just because that had been the practice, it is not justification for violating the express language of the National Security Act of 1947, which requires notification of all members of the Intelligence Committees. During the 104th Congress, I chaired the Intelligence Committee, and for that period of time I was a member of the so-called Gang of 8. Candidly, I don't think the administration told the Gang of 8 very much about what went on. Be that as it may, admittedly the administration did not tell anybody but the Gang of 8 about their electronic surveillance program until it was disclosed by the New York Times on December 16 and the Judiciary Committee brought in the Attorney General and had pressed on in a series of hearings; then, belatedly, a subcommittee was formed in the Intelligence Committee and seven additional members were informed. Then, at first, the House resisted to having only part of their Intelligence Committee informed, but, finally, 11 Members of the House were informed. Then, in the wake of the Hayden nomination, the administration finally complied with the Act by informing all of the members of the Intelligence Committee--I think, plainly, so that they could get General Hayden confirmed. When the Judiciary Committee called in Attorney General Gonzales on February 6, which was the first day we could do it after the mid- December disclosures and the hearings which we had scheduled on Justice Alito, it was an embarrassing performance. The Attorney General refused to say anything of substance about what the program was. We were ready to retire into a closed session, had that been productive, but it was a situation where the Judiciary Committee was stonewalled, plain and simple. The Attorney General then wrote us a letter on February 28 seeking to clarify and explain what he had testified to before--and only more questions were raised. We have still not resolved the issue as to whether we will recall the Attorney General before the Judiciary Committee, but there is a question as to its value and whether we can get anything from a repeat performance from Attorney General Gonzales. As I say, that remains an open question. In the interim, I have proposed legislation which would turn over the administration's surveillance program to the Foreign Intelligence Surveillance Court. That court has a record of expertise. That court has a record for not leaking and we could have it make the determination as to the constitutionality of the program. We had a hearing where we brought in four ex-judges of the Foreign Intelligence Surveillance Court who know its operations in great detail. They made some suggestions which were incorporated into my proposed legislation, thereby improving it. They answered the questions about the possibility of an advisory opinion and the issue of the case in controversy requirement. I have since conferred with Senator Feinstein and Congresswoman Jane Harman, ranking member on Intelligence in the House, about working on legislation. Both of those individuals have been privy to briefings by the administration on the program. There was a suggestion that, with additional resources and with some structural changes--for example, expanding the 3-day period to 7 days--the FISA Court would be in a position to pass, on an individual basis, the program. Whether that is so or not, I don't know, but that is a possibility. When the disclosures were made about the telephone companies providing substantial information to the administration and the NSA, the Judiciary Committee scheduled a hearing. We had it set for June 6. Yesterday, in an executive session, the issue was considered about subpoenas, since two of the four telephone companies had requested subpoenas; the issue was also raised as to a closed session. There were objections raised by some members of the committee about calling in the telephone companies. Suggestions were made by other members of the committee about calling in other members of the administration. Since we were in the middle of the debate on immigration, we held a very brief meeting in cramped circumstances in the President's Room off the Senate floor. It was decided to defer the hearing with the telephone companies by 1 week to give the committee an opportunity on June 6, the same date we had previously scheduled a hearing, to consider these issues and decide them at greater length. An interesting suggestion was made by one of the members of the committee--that in the past, when that member of the Judiciary Committee was on the Intelligence Committee, he had called for a secret session of the full Senate to discuss matters which had been disclosed to him in the Intelligence Committee which he was barred from saying publicly. That is an avenue which I am currently pursuing. The stonewalling of the Congress--and particularly the Judiciary Committee and precluding the Judiciary Committee from discharging our constitutional duty of oversight--is particularly problemsome in light of a pattern of expanding executive authority. A ranking member of the administration reportedly told a ranking member of Congress that ``we don't have to tell you anything.'' We have scheduled a hearing on signing statements where the President has asserted his authority to pick and choose what he likes and what he doesn't like in legislation which was passed by the Congress and signed by the President. The Constitution gives the President the authority to veto but not to cherry pick. We have the case of Judith Miller, the newspaper reporter put in jail for 85 days during an investigation of a national security issue as to whether the identity of the CIA agent had been disclosed, but there was also an investigation as to whether there had been perjury or obstruction of justice during the national security investigation. Perjury and obstruction of justice are serious charges, but they do not rise to the level of a national security issue, which would be the threshold for such action as jailing a reporter for 85 days. We now have the situation where the Attorney General, on a Sunday talk show last week, raised the possibility of prosecuting newspapers under a World War I espionage statute. We have the situation where the congressional quarters of Congressman Jefferson were subject to a search and seizure warrant without prior notification of the Speaker of the House of Representatives or someone in the House, with very serious questions raised there. I am advised by one of the members of those informed on the administration's surveillance program that, reportedly, the FBI now seeks to question Members of Congress about disclosures on the administration's surveillance program. These are all circumstances and situations which pose very substantial peril to the separation of powers, and Congress has not asserted its Article I powers and ought to do so. I have talked to FBI Director Mueller and to the Deputy Attorney General about the search and seizure on Congressman Jefferson. This is a matter which ought to be inquired into--perhaps quietly--to see if a protocol can be arrived at about what would be done if this situation were to reoccur in the future.

Mr. SPECTER. I thank the Chair. (The remarks of Mr. SPECTER pertaining to the introduction of S. 852 are printed in today's Record under ``Statements on Introduced Bills and Joint Resolutions.'')

Mr. SPECTER

Mr. SPECTER. Mr. President, I am introducing a revised bill on asbestos reform, with the sponsorship of Senator Leahy. This is a subject which the Senate had considered earlier this year, and it is one which I hope we will return to. To give impetus to that, I am introducing an amended version of the asbestos trust bill which makes very substantial improvements to satisfy interests and concerns raised by a number of Senators. The bill provides for a more prompt recovery for the sickest claimants; stronger medical criteria; preserves the ability of the bankruptcy trusts to continue paying impaired claims; has an improved allocation formula for well-insured and financially strapped defendant companies; and it has a tighter control on so-called leakage. Last Friday, we lost a great American judge, Judge Edward R. Becker, who made such an enormous contribution to the structuring of this asbestos reform legislation. He gave his own time, came to Washington at his own cost to preside over many meetings with the so-called stakeholders, the manufacturers, the trial lawyers, the AFL-CIO representing labor, and the insurance companies. He was working on this bill making calls to Senators right up until the time that prostate cancer took him a week ago today. When I gave him a report of our progress when it was obvious that the end was very near, he said, ``Win one for the Gipper.'' And we want to win one for the Gipper, for Judge Becker. We want to win this one for America. I ask unanimous consent that the full text of my prepared statement and the text of the bill be printed in the Record.

Mr. SPECTER

Mr. SPECTER. Mr. President, I am introducing a revised bill on asbestos reform, with the sponsorship of Senator Leahy. This is a subject which the Senate had considered earlier this year, and it is one which I hope we will return to. To give impetus to that, I am introducing an amended version of the asbestos trust bill which makes very substantial improvements to satisfy interests and concerns raised by a number of Senators. The bill provides for a more prompt recovery for the sickest claimants; stronger medical criteria; preserves the ability of the bankruptcy trusts to continue paying impaired claims; has an improved allocation formula for well-insured and financially strapped defendant companies; and it has a tighter control on so-called leakage. Last Friday, we lost a great American judge, Judge Edward R. Becker, who made such an enormous contribution to the structuring of this asbestos reform legislation. He gave his own time, came to Washington at his own cost to preside over many meetings with the so-called stakeholders, the manufacturers, the trial lawyers, the AFL-CIO representing labor, and the insurance companies. He was working on this bill making calls to Senators right up until the time that prostate cancer took him a week ago today. When I gave him a report of our progress when it was obvious that the end was very near, he said, ``Win one for the Gipper.'' And we want to win one for the Gipper, for Judge Becker. We want to win this one for America. I ask unanimous consent that the full text of my prepared statement and the text of the bill be printed in the Record.

Mr. SPECTER

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

Mr. SPECTER. Mr. President, early this morning, as we do every morning before coming to the floor to debate the immigration bill, a group of Senators sat down to consider and analyze the amendments which are on the list for today. In discussing the amendment by the Senator from Texas, there was, candidly, more confusion than I have seen on any of the amendments which we have analyzed so far. When the Senator from Texas says the immunity is eliminated only after the application is denied, then the reason for confidentiality ends, I disagree with him about that because the reason for the confidentiality is to get the applicant to be candid and complete and honest about all of the information in the application. So if the applicant knows that at some point the confidentiality is gone, there is no longer the motivation to be completely open and completely candid in making out the application. What we are really seeking, as a public policy matter, is to get the applicants to be candid and forthright and complete in the information they are providing. If there is evidence of fraud in the application, or if there is evidence of crime, that will be provable by evidence outside the scope of the application. There is another aspect of the confidentiality; that is, the confidentiality or safe harbor which applies to the employer. When the immigrant makes an application, there is material which has to be supplied by the employer--illustrative of which is a check stub, which authenticates that the applicant has a job. Now, the confidentiality applies to what the employer provides as well. The safe harbor or confidentiality protects the employer so the employer does not run the risk of providing some information which ends up on the application, then is disclosed, that could be used against the employer in a variety of contexts. Now, it is possible that the amendment by the Senator from Texas could be adopted and that aspect could be cured in conference. But it is my thought, after reflecting on it considerably, that the issues ought to be weeded out and resolved in conference as opposed to having the adoption of the Cornyn amendment. The value of confidentiality to encourage the immigrant to make full disclosure, and the value of confidentiality that the employer has, outweighs the advantages which the Senator from Texas articulates. And when the immigrant is faced with a situation where the confidentiality ends at some point--it is hard enough for Senators and experienced lawyers to figure it all out, and expecting an immigrant to be able to figure it out--I think the consequence for the immigrant will be to be hesitant and unwilling or chilled, if you will, to provide all the information. My sense is that our system will work better if there is no ambiguity or no uncertainties to the confidentiality being maintained throughout the entire process beyond when the application and appeals have all run out. But this is an important issue. I thank the Senator from Texas for focusing our attention on it. I do believe it is better addressed in conference. Mr. President, how much time remains on this amendment?