Arlen Specter

Mr. SPECTER

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. SPECTER

Mr. SPECTER. Good. But it was a terrific speech, I say to Senator Sessions, and I thank you for it and thank you for your leadership on this bill generally and for your strenuous, hard work and leadership on the Judiciary Committee.

Mr. SPECTER. My distinguished colleague from Alabama has been waiting. In advance, I thank Senator Sessions for his outstanding work on this committee generally but especially on this bill. Exhibit No. 1 [From the Hill, Feb. 7, 2006] Aiming at Asbestos Bill (By Alexander Bolton) Nearly 20 corporations have paid a total of about $3 million to defeat the asbestos trust-fund bill, which Senate Majority Leader Bill Frist (R-Tenn.) has designated his first priority in 2006, according to a coalition planning document obtained by The Hill. The Senate will consider the bill, which establishes a $140 billion trust fund to compensate the victims of asbestos exposure, over the next two weeks, leading up to the Presidents Day recess. Strategists leading the opposition view the debate as an opportunity to defeat the creation of such a trust fund permanently. ``Majority Leader Frist's agreement with Chairman [Arlen] Specter [R-Pa.] to put S. 852 on the Senate floor for a vote, in the face of opposition from the Judiciary Committee conservatives and Budget Committee leadership, has increased the stakes of that vote beyond its important role in the legislative process,'' Kieran Mahoney, a strategist with Mercury Public Affairs, wrote in a private memo to the Coalition for Asbestos Reform. The firm Fleishman-Hillard is also coordinating the lobbying effort. ``This has become a do-or-die opposition for the advocates of the Trust Fund, and its defeat could bring an end to the Trust Fund as a viable political option for addressing the asbestos litigation crisis,'' Mahoney wrote. ``Therefore coalition activities leading up to that vote should be commensurate with the opportunity presented to us--to defeat the Trust Fund once and for all.'' The memo was contained in a 22-page internal planning document detailing the Coalition for Asbestos Reform's strategy. The bill is sponsored by Specter and cosponsored by Sen. Pat Leahy (Vt.), the ranking Democrat on the Judiciary Committee. The document, crafted at the end of last year, is available on The Hill's website, http://img.thehill.com/img/ news/020706/asbestos.pdf It lays out a $2.78 million budget for defeating the bill, allocating $1.34 million for coalition operations and $1.44 million for advertising. Fleishman-Hillard and Mercury Public Affairs are charging $510,000 in fees and $80,000 in expenses for their work over the first four months of the year, according to the document. In his memo, Mahoney writes that the advertising campaign will be built around "creating political will inside three audiences--moderate/conservative Democrat Senators who are deemed persuadable, conservative Democrat Senators who are deemed persuadable, conservative Republican senators whose current opposition needs to be turned into a ``no'' vote, and DC opinion leaders who collectively make up conventional wisdom. Opinion leaders are being targeted by advertising through national cable networks, D.C. broadcast stations and Capitol Hill print outlets. Senators are being targeted through TV and print ads in select markets in key states. The business groups are leaving the persuasion of liberal- leaning senators to trial lawyers and unions. ``Separately, the Coalition needs to ensure that the trial bar and related advocacy groups are preparing a similar strategy that targets liberal Democratic Senators,'' the Mercury Public Affairs memorandum stated. The campaign appears to have gained traction, as Senate Minority Leader Harry Reid (Nev.) has vowed to filibuster it and conservative Republicans on the Judiciary Committee such as Sens. John Cornyn (R-Texas) and Tom Coburn (R-Okla.) have voiced concerns over the bill. It passed out of the Judiciary Committee with the support of all Republican members and Sens. Leahy, Dianne Feinstein (D-Calif.) and Herb Kohl (D-Wis.). Manufacturing and insurance companies have long sought a trust fund to pay asbestos-related medical claims and to avoid costly lawsuits. Partisan wrangling over the best way to pay asbestos-related claims and to settle a blizzard of ongoing and potential lawsuits that has dragged on for years. The bipartisan proposal has garnered opposition from groups of labor unions, trial attorneys, midsize manufacturing companies and insurance companies. Unions have pushed for more money in the trust fund and trial attorneys oppose the concept because it curbs litigation. Midsize companies have balked at how much they must pay into the fund, and insurance companies are worried about their liability if it runs out of money. But a significant portion of the business community supports Specter and Leahy's efforts. ``There are numerous supporters of the trust fund,'' said Matt Webb, vice president of the U.S. Chamber of Commerce's Institute for Legal Reform, which has not taken a position on the bill. ``It's impossible to say how many are in each camp, it depends on each individual company's financial situation and legal situation.'' The coalition's document includes a list of member companies and how much they've been asked to contribute to the opposition effort. Donors such as American International Group; Allstate; American Re, a reinsurance provider; Chubb Corp.; Hartford Insurance; Liberty Mutual; Nationwide Insurance; and Zurich Financial have each received bills for $134,250 to pay for operating and advertising costs, according to the document. Oglebay Norton, an industrial-minerals company, and Okonite Co., an electrical-wire manufacturer, have received bills for $55,000. Bills for varying amounts have been sent to other member companies. Exxon Mobil paid $73,000 to the coalition but is not a member, said Thomas O'Brien, chairman of the coalition, who will receive $100,000 for his work over January, February, March and April, according to the document O'Brien declined in a phone interview to discuss what other companies have joined the coalition or if the billing records accurately represent the contributions of coalition members to date. ``Things change every day,'' he said during the interview in which Bill Fay of Fleishman-Hillard also participated. ``That was a planning document. As Bill said, that document was not for public dissemination, I wouldn't comment on it.'' O'Brien and Fay said that the time for Congress to act was several years ago but that states such as Texas have now taken steps to deal with the slew of medical claims. They said that the Senate bill would wreck those efforts.

Mr. SPECTER. Mr. President, I thank the distinguished Senator from California for the comments which she has made. They are thoughtful, they are profound, they go to the heart of the question, and they illustrate the need for legislation. I thank her even more for the great contribution she has made to the bill as it has moved through the committee process. She has devised some of the key sections of the bill, starting with the handling of exigent claims to see to it that people with mesothelioma and other deadly diseases are handled at a very early stage in the proceeding. We have worked together countless hours in her office, in my office, with many other Senators in the committee process, and she has done a great job in committee generally on many items, including the one identifying victims whose identities are stolen, legislation we are trying to bring to the floor now. But I think the speech she just made was a fine hour, perhaps her finest hour, in identifying their very serious problems.

Mr. SPECTER. Mr. President, the crux of what Senator Feinstein has had to say is proof positive that we ought to proceed. There is no doubting the problem. The only issue is whether we ought to take up the bill and work on it. Anybody who votes against taking up this bill will be casting, in my opinion--it is a tough word, a tough term--an unconscionable vote, considering how many thousands of people have suffered from deadly diseases and how many companies have gone bankrupt--at least to proceed to take it up. I haven't seen any Senator who has addressed the issue on the floor who hasn't at least faced up to the fact that we have a problem that ought to be addressed. Occasionally, we do consider the merits of a pending motion. The merit of a motion to proceed is whether there is a problem which ought to be taken up. If somebody has a better bill, let them come to it. I am going to speak very briefly because our distinguished colleague from Alabama, Senator Sessions, is on the floor. He, too, has been a major contributor. First, I wish to thank Senator Carper for his speech in support of the motion to proceed earlier. I think there is Democratic support. Senator Leahy, of course, is a cosponsor, Senator Kohl is a cosponsor, Senator Feinstein has spoken, Senator Carper has spoken, and others have stated their intention to move to take up and consider the bill. Senator Hatch's comments were very important. He is the author of the trust fund concept, and chaired the Judiciary Committee before term limits called for a shift in chairmanship. He did a great job. Senator DeWine has spoken in a very important way. I want to put into the Record a couple of newspaper articles which I think are very germane. Senator Reid and I had a conversation about the bill yesterday, with Senator Reid making the accusation that lobbyists paved the way for this bill to come to the floor. On the floor, in his presence, I challenged him as violating rule XIX which bars a Senator from making derogatory comments about another Senator. This morning, in the Hill publication there was the disclosure of a fascinating document which the Hill obtained from a coalition opposing the bill. This document, which is published at some length in the Hill, points out that nearly 20 corporations paid a total of about $3 million to defeat the asbestos legislation. The document obtained says this bill's ``defeat could bring an end to the trust fund as a viable political option for addressing the asbestos litigation crisis. Therefore, coalition activities leading up to that vote should be commensurate with the opportunity presented to us to defeat the trust fund once and for all.'' This coalition document then specifies how they are laying out $2.78 million for defeating the bill, allocating $1.34 million for coalition operations and $1.44 million for advertising. Then there is a specification as to the companies that are trying to defeat the bill, such as American International Group, Allstate, American Re, a reinsurance provider, the Chubb Corporation, Hartford Insurance, Liberty Mutual, Nationwide Insurance, and Zurich Financial. Each has received bills, according to this document, for $134,250. ExxonMobil paid $73,000 to the coalition. I shall not read any further, but I ask unanimous consent that it be printed in the Record at the conclusion of my comments.

Mr. SPECTER

Mr. SPECTER. Again you thought wrong. You are in the habit of thinking wrong. I am in mid-sentence, but I am not surprised to be interrupted. We have other business we are taking care of. I have to soon excuse myself to go to the Judiciary Committee hearing, where we are taking up the question of electronic surveillance, where we have been in session listening to the Attorney General since 9:30 this morning. When the Judiciary Committee had taken up this bill, we took it up under very difficult circumstances. We started last year with the immediate job of confirming the Attorney General. The Senate went into session on the 109th Congress on a Tuesday, and we had the Attorney General in on Thursday and confirmed him in short order. Then we moved through the bankruptcy bill and the class action bill. Then we tackled the very tough problem of the filibusters, which had delayed the confirmation of circuit judges. We worked through that problem. Then in the midst of all that, we had a series of hearings on a wide variety of issues: Miller, the New York Times reporter who was kept, and the business about identity theft. We worked through hearings on the tough immigration problem. Then we took up the issue of the confirmation of Chief Justice Roberts, where the staff of the committee worked through the month of August; then we took up the question of the confirmation of Justice Alito. We worked through the months of December and January. While people were globe trotting around the world, we were at work on those matters. And through it all, we have produced a bill that is solid. It is a bill which is designed to compensate thousands of victims of asbestos. One thing the Senator from Nevada was right about: Mesothelioma is a killer. But the thing he is wrong about is that his position will allow these people to be killed without compensation, because their companies have gone bankrupt, some 77 of them. We have moved to this trust fund after decades and decades of work. I first saw this issue when Senator Gary Hart brought Johns Manville into my office in the early 1980s, 1982 or 1983, and this asbestos problem has defied solution, just defied solution--until Senator Hatch came up with the concept of this trust fund. Then the trust fund was increased in size from about $90 billion to $140 billion. I didn't hear the Senator from Nevada object when the former Democratic leader, Senator Daschle, agreed with Senator Frist that $140 billion was the accurate figure. I didn't hear him object at all. The only time I hear him object is when there is some chance--and it is an uphill fight; I am prepared to concede that, but I am used to them. I am used to uphill fights. I might even say I enjoy them. But this is the first time this issue has come to the floor of the Senate. It has been languishing for decades, and I talked to no one who denies the basic fact that there is a problem that ought to be addressed. I think even the Senator from Nevada, with his vitriol and slander, implicitly concedes it is a major problem that ought to be addressed. Now, a motion to proceed takes up the issue as to whether you ought to consider the bill. If the Senator from Nevada has valid amendments, I would like to see them. If he has a better bill, I would like to see that. I would vote for anybody's bill that is better than this one because we have to address the issue. When he talks about the Budget Committee, there are some technical problems here because the money goes through the Department of Labor, so it is a Federal expenditure, but it is not Government money; it is money contributed by the insurers and the manufacturers. There is no impact on the budget. This bill is ironclad to eliminate any possibility of Federal funding. But if you want to use obstructionist tactics and filibuster-- the Senator from Nevada is good at that--if you want to use 60 votes to try to kill it on a motion to proceed, so be it. I know what the rules are here. But there is no reason not to proceed, and there is every reason to proceed. If you want to use the 60-vote technicality to sustain a budget point of order, you can do that, too. But there is no adverse impact on the Federal budget. I regret I cannot stay and engage in this colloquy. I do have to get back to the Judiciary Committee. I ask unanimous consent that the text of my full statement be printed in the Record. Mr. President, again, this is S. 852, the Fairness in Asbestos Injury Resolution Act of 2005, FAIR Act, the successor to S. 1125 and S. 2290, the FAIR Acts of 2003 and 2004. My colleagues, Senator Frist, Senator Hatch and Senator Leahy, deserve enormous credit for the drafting of these acts and for the development of this legislation. There is a will in the Senate to enact legislation to end the ongoing rash of bankruptcies; to prevent the diversion of resources from those who are truly sick; to preserve jobs and pensions; and to solve the worst litigation crisis in the history of the American judicial system. The Senate plainly wants a more rational asbestos claims system, and I believe that this legislation offers a realistic prospect of accomplishing that result. This legislation provides substantial assurances of acceptable compensation to asbestos victims and substantial assurances to manufacturers and insurers to resolve, with finality, asbestos claims. Over the past three decades, a solution to the asbestos crisis has eluded Congress and the courts. Some 77 companies have gone bankrupt, thousands of individuals who have been exposed to asbestos have deadly diseases--mesothelioma and other such ailments--and are not being compensated or because of the unfairness of the current system, see little of the awards they do win. A May 10, 2005, report released by the RAND Institute for Civil Justice estimates that nonmalignants make up about 90 percent of the litigation and most are unimpaired. According to RAND, the number of claims continues to rise, with over 730,000 claims filed already and some 200,000 pending. The number of asbestos defendants also has risen sharply, from about 300 in the 1980s, to more than 8,400 today and most are users of the product, not its manufacturers. These companies represent 85 percent of the U.S. economy and nearly every U.S. industry; including automakers, ship builders, textile mills, retailers, insurers, electric utilities and virtually any company involved in manufacturing or construction in the last 30 years. Asbestos leaves many victims in its wake. First and foremost, the sick and their families have suffered and do not receive fair compensation in the tort system. Asbestos victims filing claims receive an average of 42 cents for every $1 spent on asbestos litigation. Today, 31 cents of every $1 have gone to defense costs, and 27 cents have gone to plaintiffs' attorneys and other related costs. The flawed asbestos litigation system not only hurts the sick and their chances of receiving fair compensation but also claims other victims. These include employees, retirees and shareholders of affected companies whose jobs, savings and retirement plans are jeopardized by the tide of asbestos cases. With asbestos litigation affecting so many companies, this also impacts the overall economy, including jobs, pensions, stock prices, tax revenues and insurance costs. According to a 2002 study by Nobel laureate Joseph Stiglitz, asbestos bankruptcies have cost nearly 60,000 workers their jobs and $200 million in lost wages. Employees' retirement funds have shrunken by 25 percent. In July 2003, the Judiciary Committee voted out S. 1125, a bill with numerous problems, largely along party lines, 10 yeas, 8 nays, 1 pass, in an effort to move the legislation. S. 1125 created the basic structure of the legislation, and made huge strides in working out the medical criteria. However, the bill foundered on other issues. In August, at my request, Judge Edward R. Becker, a Federal judge for 34 years, convened in his chambers in Philadelphia the so-called stakeholders; namely, manufacturers, labor, AFL-CIO, insurers and trial lawyers--to determine if some common ground could be found. Until the preceding May, Judge Becker had been the Chief Judge of the Third Circuit Court of Appeals and wrote the opinion in the asbestos class action suit that was affirmed by the U.S. Supreme Court. From September 2003 through January 2005, there were some 36 stakeholder meetings held in my conference room, with Judge Becker as a pro-bono mediator, usually attended by 25 to 40 representatives with sometimes over 75 people present. I have also met 61 times since January 2005 with various officials from the administration, members of the Senate Judiciary Committee and their staffs, the Senate leadership and other Senators all in an effort to move this bill forward. Judge Becker and I have sought an equitable bill which took into account, to the maximum extent possible, the concerns of the stakeholders and to get their input on drafting of the bill. After analysis and deliberation, we found we could accommodate many of the competing interests. This process commenced with the blessing of then-Chairman Hatch and Ranking Member Leahy of the Judiciary Committee. This extended process allowed the stakeholders an extraordinary ``hearing'' process and really amounted to the longest ``mark-up'' in Senate history although not in the customary framework. We have had the cooperation of many Senators. Senators Hatch and Leahy have had representatives at all the meetings. The majority leader, Senator Hatch, and Senator Leahy have addressed this ``working group'' at our meetings. Senator Hatch's and Senator Leahy's representatives have been active participants at every meeting, as well as the members of the staffs of Senators Baucus, Biden, Brownback, Burns, Carper, Chafee, Chambliss, Coburn, Cornyn, Craig, DeWine, Dodd, Durbin, Feingold, Feinstein, Graham, Grassley, Hagel, Kennedy, Kohl, Kyl, Landrieu, Levin, Lincoln, Murray, Ben Nelson, Pryor, Schumer, Sessions, Snowe, Stabenow, and Voinovich. In 1997, the Supreme Court commented for the first time on the growing asbestos problem by stating, in the context of holding that asbestos litigation was not susceptible to class action treatment: The most objectionable aspects of this asbestos litigation can be briefly summarized: dockets in both federal and state courts continue to grow; long delays are routine; trials are too long; the same issues are litigated over and over; transaction costs exceed the victims' recovery by nearly two to one; exhaustion of assets threatens and distorts the process; and future claimants may lose altogether. . . . In the ensuing years with asbestos litigation increasingly choking the courts, the Supreme Court has repeatedly called upon Congress to act through national legislation: In one case, the Court observed ``the elephantine mass of asbestos cases . . . defies customary judicial administration and calls for national legislation.'' A concurrence in the same decision found that the asbestos crisis ``cries out for a legislative solution.'' As recently as 2003, the Supreme Court reminded us that it had ``recognized the danger that no compensation will be available for those with severe injuries caused by asbestos . . . It is only a matter of time before inability to pay for real illness comes to pass.'' Even though he dissented from the majority holding in that 2003 case, Justice Breyer observed: ``Members of this Court have indicated that Congress should enact legislation to help resolve the asbestos problem. Congress has not responded.'' The FAIR Act of 2005 is a response to the Supreme Court's many calls for national legislation to fix a broken asbestos litigation system. It is the product of these extensive negotiations among the key stakeholders. Throughout this process, the stakeholders reached important compromises that are now embodied in S. 852. The Judiciary Committee also spent a month marking up the bill last May during which time the committee accepted 75 amendments from both Republican and Democratic members. After extensive deliberation, the committee reported the bill favorably on May 26, 2005 on a strong bipartisan vote of 13-5. The concept of a trust fund is an outstanding idea. Senator Hatch deserves great credit for moving the legislation in the direction of a trust fund with a schedule of payments analogous to workers' compensation so the cases would not have to go through the litigation process. Under this proposal, the Federal Government would establish a national trust fund privately financed by asbestos defendant companies and insurers. No taxpayer money would be involved. Asbestos victims would simply submit their claims to the fund. Claimants would be fairly compensated if they meet medical criteria for asbestos induced illnesses and show past asbestos exposure. The trust fund would guarantee compensation for impaired victims. Through a series of meetings with Judge Becker, we have wrestled with and have been able to solve a number of very complex issues. The size of the trust fund was always a principal issue of dispute, starting at $108 billion. The manufacturers/insurers raised their offer to $140 billion. In October 2004, Majority Leader Frist and then-Democratic Leader Daschle agreed to $140 billion. When Senator Frist and Senator Daschle, in an adversarial context, agreed to the adequacy of the $140 billion figure, it is difficult to exceed it even though the AFL-CIO did not contemporaneously agree. It is not possible to say definitely what figure would be adequate because it depends on the uncertainty of how many claims will be filed. There is support for the adequacy of the $140 billion figure from reputable projections, including the Congressional Budget Office cost estimate. Since this bill was discharged from this committee in May, new reports analyzing the bill have been published--such as the CBO report and the Bates White report. In late August 2005, the non-partisan Congressional Budget Office issued its analysis of the bill. In its report, the CBO predicted that asbestos claims and award values could fall anywhere between $120 to $150 billion, and as a middle of the road assessment, concluded that the fund would likely payout $132 billion over the life of the fund. It was reassuring to see CBO project $132 billion as adequate to pay the claims in a contest where there are so many variables that do not lend themselves to precise projections or predictions. Even in the range of that uncertainty, the CBO has estimated that claims could be as low as $120 billion and no higher than $150 billion so that our legislation with $140 billion is reasonable and realistically calculated to cover the claims, especially in the context with the provisions for review of medical criteria and award values to reduce expenditures or increase contributions in the trust fund. In September 2005, the analysis by the Bates White firm concluded the proposed fund would face claims of between $301 billion and $561 billion, projecting that claimants with lung and other cancers, would inundate the fund. A hearing on this issue was held by the Judiciary Committee on November 17, 2005. During the hearing we heard testimony on both sides of the issue. The Bates White study proved to be fatally flawed for reasons detailed at that hearing. Thus, in December 2005, CBO confirmed its original cost estimate, reaffirming that $140 billion would be sufficient to cover claims filed for compensation under the trust fund. The real safety valve, if the fund is unable to pay claims, is for the injured to have the ability to go back to court if the system is not operational and able to pay exigent health claims within 9 months after enactment, and all other valid claims within 24 months of enactment. Upon reversion to the tort system, the bill provides that claimants may file suits either in Federal Court or State Court in the State in which the plaintiff resides or State courts where the asbestos exposure took place. Forum shopping has been eliminated. The claimants object to any hiatus between access to the courts and an operating system; but the reality is that court delays are customarily longer than the delay structured in this system. The defendants and insurers object saying it is too short a time frame, but they have the power to expedite the process by promptly paying their assessments. Leaders of the Manville Trust and the RAND Institute study provide a solid factual basis that the volume of claims can be efficiently administered by the fund administrator using a technique developed by the Manville Trust and other similar claims facilities that have processed asbestos claims for many years. The Manville Trust has processed as many as 150,000 claims per year. The number of exigent claims anticipated in the first 9 months of the fund is vastly smaller and even the total number of claims anticipated in the first 24 months is significantly less that which the Manville Trust has handled in a comparable period. Additionally, the bill provides the administrator with the option to contract out the exigent claims to a claims facility for expedited processing under the standards of the fund on a voluntary basis. The short time frame will prod the system to become operative at an early date. The bill sends the claims back to the fund as soon as it is certified operational with a credit for any payment of the scheduled amount. Similarly, the defendants seek a commitment that the legislation will bar return to the courts for at least 7\1/2\ years. It is hard to see how the substantial fund would be expended in a lesser period. Here again, the legislation gives the defendant substantial assurances that the system will last at least 7\1/2\ years. If it collapses, the claimants should not bear the burden, but should reclaim their constitutional right to a jury trial. However, sunset cannot take place before there is an extensive and rigorous ``program review.'' This would give the administrator an opportunity to refashion the program to compensate for any major shortcomings. The claimants sought $60 billion in startup contributions within 5 years and the defendants countered with a maximum of $40 billion. The fund's borrowing power should enable it to borrow at least the balance of $20 billion because of the defendants continuing substantial financial commitments. Here again, the bill meets the standard of substantial assurances that $60 billion will be in hand within the first 5 years. A key issue for the claimant has been that of workers' compensation subrogation. This issue is important because the value of an award to the claimant depends on whether the claimant may have to pay a substantial amount of it to others. While the precise picture is different from State to State, in general, workers' compensation laws give employers, and their insurance carriers, subrogation rights against third-party tortfeasors and a lien on the injured employee's recovery from a third-part tortfeasor. This is a big issue because workers' compensation covers the employees' medical costs. We closely examined and considered including a proposal that would have called for a so-called workers' compensation ``holiday.'' Such a proposal would have provided for a ``holiday'' from worker's compensation payments during the period of receipt of payments from trust fund except to the extent that the compensation would exceed them, with a waiver of past and future subrogation. However, as each State has different workers' compensation laws, we concluded that such a proposal could go beyond the practice in a number of States, leaving some claimants with a significantly reduced award. Furthermore, claimants assert, with a substantial basis that the award values in the bill were designed with the understanding that there would be no liens or rights of subrogation against the claimants based on workers' compensation awards and health insurance payments. Therefore, after substantial analysis, we have determined that to be fair to victims, claimants should be allowed to retain both their fund awards and workers' compensation payments. It is important that the bill must extinguish any liens or rights of subrogation that other parties might assert against the claimants based on workers' compensation awards and health insurance payments. Another key issue for the claimants has been the legislation's treatment of asbestos disease claims under the Federal Employers' Liability Act, FELA, the workers' compensation system for rail workers. Earlier versions of the bill would have preempted FELA claims for asbestos-related diseases, limiting victim's recovery to compensation under a national asbestos trust fund. Rail labor asserts that such an approach is unfair to rail workers, since for all other workers, the bill maintains workers' compensation rights. Alternative approaches to dealing with the FELA issue have been proposed, including providing for a supplemental payment, in addition to awards under the bill, to provide compensation to rail workers for work-related asbestos diseases. The AFL-CIO's affiliates which represent workers in the rail industry have been engaged in discussions with industry on this issue, and a fair resolution has been reached. The bill provides for a principled compromise that would allow for a special adjustment for railroad workers so that the compensation award would be structured in a manner that would allow for corollary benefits--similar benefits for workers under FELA and workers compensation. It also clarifies that this legislation intends to deal solely with asbestos claims and does not in any manner impact FELA. In these marathon discussions, plus four committee hearings on the issue in 2005, we understand the deep concerns expressed by the stakeholder representatives on more concessions for their clients. On the state of the 20-year record, this choice is not between this bill and one which would give their clients more concessions. The choice is between this bill and the continuation of the present chaotic system which leaves uncompensated thousands of victims suffering from deadly diseases and litigation driving more companies into bankruptcy. We considered at length the manufacturers/insurers objections to medical screening, but concluded such a provision was necessary as an offset to the reduced role of claimant's attorney. With the previous potential of a substantial contingent fee, claimants' attorneys identified those damaged by exposure to asbestos. Absent that motivation, with the attorneys' fees capped at 5 percent, it is reasonable to have routine examinations for people who would not be expected to go for such checkups on their own; so as a matter of basic fairness, such screening is provided. By establishing a program with rigorous standards, as we have done in this bill, unmeritorious claims can be avoided with the fair determination of those entitled to compensation under the statutory standard. The legislation has closely examined the issues of so-called ``leakage'' in the fund and has provided that all asbestos claims pending on the date of enactment, except for non-consolidated cases actually on trial, and except cases subject to a verdict or final order or final judgment, will be brought into the asbestos trust fund. Furthermore, only written settlement agreements, executed prior to date of enactment, between a defendant and a specifically identifiable plaintiff will be preserved outside of the fund; the settlement agreement must contain an express obligation by the settling defendant to make a future monetary payment to the individual plaintiff, but gives the plaintiff 30 days to fulfill all conditions of the settlement agreement. We have also included in the legislation language designed to ensure prompt judicial review of a variety of regulatory actions and to ensure that any constitutional uncertainties with regard to the legislation are resolved as quickly as possible. Specifically, it provides that any action challenging the constitutionality of any provision of the act must be brought in the United States District Court for the District of Columbia. The bill also authorizes direct appeal to the Supreme Court on an expedited basis. An action under this section is to be filed within 60 days after the date of enactment or 60 days after the final action of the administrator or the commission giving rise to the action, whichever is later. The District Court and Supreme Court are required to expedite to the greatest possible extent the disposition of the action and appeal. Claimants also expressed the need for assurances on the manufacturers payment into the fund. Therefore, S. 852 requires enhanced ``transparency'' of the payments by the defendants and insurers into the fund. The proposal provides that 20 days after the end of such 60- day period, the administrator shall publish in the Federal Register a list of such submissions, including the name of such persons or ultimate parents and the likely tier to which such persons or affiliated groups may be assigned. After publication of such list, any person may submit to the administrator information on the identity of any other person that may have obligations under the fund. In addition, there are enhanced notice and disclosure requirements included in the legislation. It also provides that within 60 days after the date of enactment, any person who, acting in good faith, has knowledge that such person or such person's affiliated group would result in placement in the top tiers, shall submit to the administrator either the name of such person or such person's ultimate parent; and the likely tier to which such person or affiliated group may be assigned under this act. As I have mentioned previously, this legislation deals with a number of very complex issues, one of them being that of ``mixed-dust.'' We held a hearing in the Judiciary Committee on this issue on February 2, 2005. The manufacturers fear that many asbestos claims will be ``repackaged'' as silica claims in the tort system. Evidence adduced at the hearing reflects that this has been happening in a number of jurisdictions. If a claim is due to asbestos exposure at all, the program should be the exclusive means of compensation. The stakeholders agree that this is an asbestos bill, designed to dispose of all asbestos claims but that workers with genuine silica exposure disease ought to be able to pursue their claims in the tort system. The problem is that with those claims where the point of demarcation is unclear. Silica/asbestos defendants are worried that they will find themselves in court with the burden of proving that the plaintiffs injury is due to asbestos rather than silica. S. 852 makes clear that pure silica claims are not preempted, but claims involving asbestos disease are preempted. A claimant must provide rigorous medical evidence establishing by a preponderance of evidence that their functional impairment was caused by exposure to silica, and asbestos exposure was not a significant contributing factor. Although this does impose the burden on the claimant, this is no different than the burden the plaintiff or any party advancing a position has in producing medical evidence in any case that the physician will state that a disease was caused by some condition or exposure or that it was not caused by some condition or exposure. In addition, the testimony given at the February hearing on the issue established that asbestos and silica are easily distinguishable on x ray and that asbestos and silica rarely are found in the same patient. Another very complicated issue I have addressed in my legislation, at the request of the claimants, is that of providing for award adjustments for exceptional mesothelioma cases based on age and the number of dependents of the claimant. For example, a mesothelioma victim who is 40 years old with two children will be able to get an upwards adjustment in his award amount as compared to a 80 years mesothelioma victim with no dependents. The impact of such adjustments to the fund will remain revenue-neutral. There has been a strong concern that this bill should not become a ``smokers'' bill rather than an asbestos bill--that thousands of smokers will claim to be in the level VII compensation tier in order to get money even if asbestos had nothing to do with their disease. After long discussions with the various sides, it has been decided to remove level VII cases from the fund, cases which had the potential to bring down the entire fund. There has also been a concern with the legitimacy of the level VI compensation tier. We requested that the Institute of Medicine, IOM, commence a study to assess the medical evidence so as to determine whether colorectal, laryngeal, esophageal, pharyngeal or stomach cancer can be caused by asbestos exposure. The IOM will conclude its study of level VI causation by April 2006. With a 270-day stay on exigent cases and 2-year stay of all other cases, this has the practical impact of the IOM study results being conclusive on inclusion or exclusion of level VI prior to any claim being filed. Therefore, the bill retains the level VI tier pending the IOM study conclusions but continues to provide extensive safeguards to the fund against those individuals with these diseases making claims against the Asbestos Trust Fund. Any level VI claim must be based on findings by a board-certified pathologist accompanied by evidence of a bilateral asbestos-related nonmalignant disease; evidence of 15 or more weighted years of substantial occupations exposure to asbestos; and supporting medical documentation establishing asbestos exposure as a contributing factor in causing the cancer in question. The claim must also be referred to a physicians panel for a determination that it is more probable than not that asbestos exposure was a substantial contributing factor in causing the other cancer in question. Further, the bill mandates that the physicians panel review the claimants smoking history as opposed to ``claimant may request.'' The FAIR Act is a complicated bill, but one that is both integrated and comprehensive and reflective of a remarkable will to enact legislation. If this bill is rejected, I do not see the agenda of this Senate Judiciary Committee revisiting the issue. I cannot conceive of a more strenuous effort being directed to this subject that has been done over the past 2\1/2\ years. This is the last best chance. I remain confident that during debate on the Senate floor, we can forge and enact a bill that is fair to the claimants and to business and that will put an end once and for all to this nightmare chapter in American legal, economic and social history. If we can summon the legislative will in a bipartisan spirit, it can be done. Anything less would preserve the injustices of a system that even the highest Court of this country has called upon the Congress to fix.

Mr. SPECTER. Mr. President, very briefly, my feelings are not hurt. My feelings are an irrelevancy. If they were relevant, they still have not been hurt. My concern is for the feelings of the people who have been victimized by asbestos and have no one from which to collect. I don't make any point about having done a lot of work on this bill. I don't do piecework around here. I do work on a lot of bills. I do not personalize it at all. My thrust is strictly on the merits, on a way to fairly compensate victims, on a way to stop more companies from going into bankruptcy, on a way to stop the hemorrhaging of job losses, and a way to stimulate the economy. I make the submission of this bill strictly on the merits. I compliment Senator Leahy on what he has done on this bill, as well as his staff, in coming together and structuring the bill, again, in meeting after meeting and in discussion after discussion. What we asked our colleagues to do is to take a look at the merits. Don't be concerned about the work that we put into it, don't be concerned about our feelings; be concerned about the problem and about our suggested solution and about our openness to make changes. If anybody has amendments, we will consider them. If somebody has a better bill, we will consider that. I yield the floor.

Mr. SPECTER. Mr. President, I take strong offense to the statements made by the Senator from Nevada. His accusation that lobbyists are buying their way into the Senate is an outrageous violation of rule XIX, which provides that no Senator in debate shall directly or indirectly, by any form of words, impute to another Senator or to other Senators any conduct or motive unworthy or unbecoming a Senator. To say that this bill, which Senator Leahy and I have led for the better part of the last 3 years, is the result of lobbyists ``buying their way into the Senate'' is slanderous. That is a violation of rule XIX. It may be that the Senator from Nevada is used to slander, is used to libel, because that is what he did recently to 33 Senators. Regrettably, nobody has challenged him under rule XIX. Rule XIX relates to what is done on the floor of the Senate, but in this day and age of debates outside the Senate, of debates on television and radio and in the newspaper, 33 Senators were victimized by the Senator from Nevada, who then scribbled out a form apology letter which was meaningless in the context of what was done. And to talk about lobbyists buying their way onto the Senate floor is an outrageous distortion of what has happened on this bill. The fact is, over the course of the last 2\1/2\ years, there have been 36 meetings held in my office, attended by people who have an interest in this legislation or their representatives. The AFL-CIO was there. Trial lawyers were there. Representatives of the manufacturers and representatives of the insurers and anybody else who wanted to come in were welcome. I didn't see the Senator from Nevada there once. He has talked about the bill in a rambling, disconnected way, which proves only one thing, and that is that he doesn't know anything, really, about the bill. He talks about how the Congressional Budget Office has issued a report saying that it would cost between $120 and $135 billion. Under certain contingencies, it might go to $150 billion-- unlikely. The figure really established was $132 billion. He talked about the Bates White report which includes people without any exposure. He wasn't in attendance at the hearing we had during which the CBO came in and filed a supplemental report on the adequacy of the $140 billion. That figure is not a concoction of Arlen Specter; that figure was negotiated by Senator Daschle and by Senator Frist because they concluded that figure was the accurate figure to take care of these claims. When the Senator from Nevada talks about all of the other subjects which could be taken up, he suddenly became interested in LIHEAP, importuning Senators from cold States that LIHEAP should be taken up instead of the asbestos bill. And when he talks about wind power and the debt and every subject virtually under the sun--no real interest in LIHEAP until it is a diversion from the asbestos bill. I have been around here a while, a little longer than the Senator from Nevada, and I never saw so many red herrings at one time. It could fill an entire aquarium. What he is seeking to do is to obstruct. He has had a lot of practice at that. If he is successful in obstructing this bill from going forward, it will be a great travesty for the American people, for asbestos victims who are now not able to collect because their companies are bankrupt. Not a word on what the Senator from Nevada had to say about 77 companies which have gone into bankruptcy. He talks about people with mesothelioma, fakes showing some concern while they and their dependents are going penniless because there is nobody to pay their claims. He says one size fits all. The great problem is, the Senator from Nevada doesn't know anything about the bill. There has been a very carefully structured schedule of payments. When he says the veterans are against it, he is wrong. When he says labor is against it, we have a long list of labor unions. Senator Leahy and I sat down with the leaders of the AFL-CIO and are working out the few remaining objections they have to the bill. When he talks about the managers' package, that is acceptance of amendments. We went through exhaustive and extensive hearings. In regards to the 36 meetings which have been held in my office, we brought in a distinguished senior Federal judge, Edward R. Becker, who had been the chief judge of the Third Circuit, who accepted my request to mediate. Our meetings started in his chambers in August of 2003, right after the bill was reported out of the Judiciary Committee during the 108th Congress. And we have had, as I said, 36 meetings. I don't think Judge Becker can tell you how many meetings he has held individually because he can't count that high. I certainly can't tell you how many meetings I have had. But I have talked to individual Senators repeatedly, probably some 60 or 70 in this body, and when they hear what the bill is about, they are interested. The one Senator whom I talked to who had absolutely no interest in the bill was the Senator from Nevada. All he wants to do is to block the bill. When he says this bill is not ready, this bill has been subjected to more analysis and more investigation and more consideration than any legislation I have seen in my 25 years here, and I think it is fair to say more analysis and more consideration than any piece of legislation that has been considered in the history of the U.S. Senate. Let me put it a different way: I challenge the Senator from Nevada or anybody else to cite a piece of legislation which has had more analysis and more consideration. This bill is more than ready to come to the floor. The difficulty was that when we reported it out last May 26, the business of the Senate was stacked sky high. And try as he might, the distinguished majority leader, Senator Frist, could not find time to bring it up. He put it on the agenda as the first legislative consideration of the 109th Congress in the second session. That is why we are here. The arguments--the rambling statements made by the Senator from Nevada--I should not call them arguments. They don't rise to the level of being arguments. He talks about transparency. We know the individual companies in these various groups. We had to subpoena them to get them, but we have subpoenaed them. We do have the records. When he talks about the lobbyists writing the bill, what an outrageous statement to make in the context of what Judge Becker and I and Senator Leahy and others have done on this bill. To accuse us of being the pawns of the lobbyists is beyond slander, beyond insult. It is beyond outrage that those words should come from the mouth of the leader of the Democrats in this body. When he talks about silicosis, the rights to sue for silicosis are maintained. It is a very rare situation where someone has both silicosis and an asbestos-related problem. But when you go to court and you make a claim under our tort system, you have to prove, in any case, whether you claim it is silica, or whatever the cause is, that there is not some other cause that is the causative factor of the ailment in question. We had a hearing on silicosis. I am sorry to hear about the family of the Senator from Nevada who suffered from silicosis. We had a very involved hearing on the matter. Do you know who wasn't there? The Senator from Nevada--just as he was AWOL every other time when serious issues were under consideration. Mr. President, I would like to stay here longer this afternoon. I will put the full text of a statement in the Record, which is an extensive analysis of this bill. Our phenomenal staff has been at work on this matter for months, led by two very fine lawyers, Seema Singh and Harold Kim, and by many on the Judiciary Committee. This statement I recommend to my colleagues to read if they want to understand the bill. I would not spend too much time reading the Congressional Record on what the Senator from Nevada has had to say because there is no substance to anything he has had to say. When the charges are made here about the lobbyists buying their way into the Senate, Senator Leahy is on the floor and he is the cosponsor of the bill. Senator Kohl and Senator Feinstein voted the bill out of committee. I had heard this ridiculous talk about this being a product of K Street. Well, this Senator is not a product of K Street; neither is Senator Leahy, neither is Senator Feinstein. As far as Senator Kohl is concerned, he could buy and sell K Street himself without any sweat. So to talk about us being in the pocket of the lobbyists, I have not been treated like that since I came to the Senate. In fact, I have never been treated like that. I resent it. I call it a violation of rule XIX. I hope the Senator from Nevada will abandon these tactics. There is enough objection and controversy and dissent in this body that we don't need personal attacks. I have to excuse myself, Mr. President, because----

Mr. SPECTER. Mr. President, I have the floor.

Mr. SPECTER

Mr. SPECTER. Mr. President, we need the PATRIOT Act. I am prepared to work on it further to improve it. I support the bill, and I yield back 4 minutes 45 seconds of my 5 minutes.

Mr. SPECTER

Mr. SPECTER. Mr. President, I would like to call the chairman's attention to a serious situation facing a Federal district judge in my State of Pennsylvania, who recently contacted me on this matter. He has an immediate problem that could be solved with an amendment to this bill. This judge was assigned as the transferee judge responsible for handling all pretrial matters in very large multidistrict litigation involving antitrust claims in the corrugated paper industry from all around the United States. He has been working on the case since 1999. Late in this last year, a company in which the judge inherited stock over 30 years ago merged into another company which happens to be one of the plaintiffs in the case. Because of the judge's stock holdings in this company, the judge may now have to recuse himself from the case. Most of the parties would like the judge to remain on the case because of his years of experience and expertise on this case. In order to remain as the transferee judge, this judge would have to sell his holdings, which would give him a capital gain this year well into six figures. Last March and again this past November, Ralph Mecham, as Secretary of the Judicial Conference of the United States, transmitted on behalf of the Conference a legislative proposal to you and to Senator Baucus that would resolve this judge's problem and similar problems for countless other Federal judges throughout the United States. It would permit a judge who must sell financial holdings in order to avoid a conflict of interest to reinvest that money in another holding and defer paying the capital gains tax until the substitute financial interest is liquidated. The taxes are not forgiven, but deferred and payable at the later date, as I just said. This same solution to conflicts of interest is already available to executive branch officials. The proposal by the Judicial conference would simply extend it to Federal judges, as well, bringing parity to these two branches of the Federal Government. I understand that it is too late at this time to offer the Judicial Conference proposal as an amendment. However, I would like to know if the chairman would consider taking this matter up during the conference with the House on this bill.

Mr. SPECTER

Mr. SPECTER. Mr. President, I wish to offer some remarks on our loss of Mrs. Coretta Scott King, who has passed away at the age of 78. I join my colleagues in cosponsoring and supporting S. Res. 362 to honor the life of and express the condolences of the Senate on her passing. Coretta Scott King was born April 27, 1927, on a farm in Heiberger, AL, to Obadiah, Obie, and Bernice McMurry Scott. Though her family owned the land, it was often a hard life. All the children had to pick cotton during the Great Depression to help the family make ends meet. Graduating from Lincoln Normal School in Marion, AL, at the top of her class in 1945, Coretta went to Antioch College in Yellow Springs, OH. After graduation, she moved to Boston, MA, where she met Martin Luther King, Jr. They were married in 1953 on the lawn of her parents' house and with the ceremony performed by King's father. Coretta King received a degree in voice and violin at the New England Conservatory, then moved with her husband to Montgomery, AL, in September 1954 after he was named pastor of the Dexter Avenue Baptist Church. Together, they had four children: Yolanda Denise King, Martin Luther King III, Dexter Scott King, and Bernice Albertine King. Mrs. King received honorary degrees from many institutions including Princeton University and Bates College. She was a member of Alpha Kappa Alpha, a noted African-American women's sorority. The King family was front and center to one of the most turbulent times of the 20th century. Just 2 weeks after the birth of her first child, Rosa Parks was arrested on a Montgomery bus, helping spark what would develop into the modern civil rights movement that would be led by her husband. The struggles that followed included a narrow escape from death in 1956 when Mrs. King and her daughter were home when a bomb exploded at the family's residence--her husband was speaking at Rev. Ralph Abernathy's First Baptist Church at the time. Mrs. King later put together a series of Freedom Concerts that combined poetry, narration, and music to highlight the movement and also raise funds for the Southern Christian Leadership Conference. In 1962, she served as a Women's Strike for Peace delegate to the 17- nation Disarmament Conference in Geneva, Switzerland. Notably, she preceded her husband by 2 years in opposing the Vietnam War, addressing a 1965 antiwar rally at Madison Square Garden in New York City, while also serving as a liaison to international peace and justice organizations. Over the years, she was active in preserving the memory of her husband and in other political issues. After her husband was assassinated in 1968, she began attending a commemorative service at Ebenezer Baptist Church in Atlanta to mark her husband's birth every January 15th and fought for years to make it a national holiday, a quest that was realized in 1986, when the first Martin Luther King Day was celebrated and which we just recently celebrated 2 weeks ago. In her own right, Mrs. King was vocal and influential on many issues, including opposing apartheid; opposing capital punishment; opposing the 2003 invasion of Iraq; and advocating for the rights of women, lesbians and gays, as well as AIDS/HIV prevention. I was disturbed to hear of Mrs. King's hospitalization in August 2005 after suffering a stroke and a mild heart attack but encouraged by her progress in regaining some of her speech and continued physiotherapy at home. I understand that on January 14, 2006, Mrs. King made her last public appearance in Atlanta at a dinner honoring her husband's memory and that, fittingly, she will be buried in Atlanta next to her husband at The King Center. Dr. Martin Luther King, Jr. and Coretta Scott King were remarkable people who led remarkable lives. Our Nation is a better place for their actions, and they will continue to live in our collective memory for many years to come. I wish to offer her family and friends my deepest condolences.

Mr. SPECTER

Mr. SPECTER. When you take a look at the values of an individual, who knows him better than the judges with whom he worked? Seven judges came before the Committee to testify and they all authenticated the conclusion that he does not have a predetermined set of values that he is going to try to force upon the country. All factors considered, I think he is worthy of confirmation by this body. I thank the Chair, and I yield the floor.

Mr. SPECTER. I thank the Chair. Mr. President, as the Senate moves toward the vote on the nomination of Judge Samuel A. Alito, Jr., to be Associate Justice of the Supreme Court, we are mindful of the very heavy responsibility under the Constitution which the Senate has for confirmation of a Supreme Court Justice for a lifetime appointment. There is no vote as important, except for a declaration of war or the resolution authorizing the use of force, which is the practical equivalent of a declaration of war. In our society, the Supreme Court of the United States is the final decisionmaker in, as the process has worked out, many cutting-edge questions that come before the Supreme Court. The Supreme Court decides the issue of who shall live, who shall die--the decision which they had recently on the Oregon law or the application of the death penalty. It is the final protector of civil rights, the adjudicator of the Commerce clause, as to what Congress can do by way of legislation, and its authority and power is magnified because so many of the decisions of the Court are on a 5-to-4 count. When we have Justice O'Connor retiring as the swing vote on so many cases, there is an even heavier air of responsibility as we move through the confirmation process of Judge Alito. It is our responsibility to examine the nominee in terms of his qualifications. Those qualifications have been established by virtue of his educational background and his professional background. We have to make a determination of his temperament, and I believe we saw poise and patience under a very difficult confirmation process. The confirmation process has evolved and, candidly, I think Judge Alito's was a little tougher, a little more confrontational than most. That is the right of the Senators. But he certainly had ample poise and ample calm and demonstrated steadfastness and temperament. The tougher inquiry is when we bear in and focus on what he is going to do if confirmed? What are his jurisprudential approaches? I think we have come too much to the point in our confirmation process of looking for definite answers. Some have objected to the confirmation of nominees because there is no guarantee on how they will vote in certain cases. A nominee to the Supreme Court is not supposed to give guarantees. A nominee to the Supreme Court is supposed to respond as to factors to be considered and give us an idea of his or her reasoning power. He or she is not supposed to give us guarantees on how they would rule. This goes back to President Lincoln, who said we should loathe somebody who told us in advance how he or she would rule when nominated to the Supreme Court of the United States. There is a lot of anxiety about a woman's right to choose. I share that anxiety and I share that concern. We have seen in the history of the Court that early indications as to how an individual may feel about a woman's right to choose will not necessarily be the determinant as to how that nominee will vote when the nominee is a Justice on the Supreme Court. We have the operative case on a woman's right to choose. It is Casey v. Planned Parenthood, decided in 1992. It retained the woman's right to choose but modified the rationale from Roe v. Wade in 1973. The opinion was written jointly by Justice O'Connor, Justice Anthony Kennedy, and Justice David Souter. Prior to their becoming Supreme Court Justices, all had expressed opposition to abortion rights, opposition to a woman's right to choose. But when they came to the Court and they took a look at the precedents, when they took a look, as their joint opinion said, on reliance, they sustained the principle of a woman's right to choose. While you had Judge Alito's statement in 1985, 21 years ago, about his own view on the subject, he made it emphatic that as a jurist he would look to precedent and his own personal views would not dominate his thinking as he applied the law in a constitutional setting. He was also questioned at length about his work in the Solicitor General's Office on the Thornburgh case. Too much is made of what an individual does in an advocacy capacity representing a client. But Judge Alito was questioned at great length about the philosophical underpinnings of a woman's right to choose. He agreed with Justice Harlan's dissent in Poe v. Ullman about the Constitution being a living document. And he agreed with Cardozo in Palko v. Connecticut, that constitutional interpretation represents the values of an evolving society. He went about as far as he could go without making a commitment in advance. When it came to the question of Executive power, here again he described the philosophical underpinnings of the President's authority and he agreed with Justice O'Connor that a state of war does not give a President a blank check. He outlined the considerations going to Justice Jackson's concurrence in the steel seizure case, about how he would face an issue on Executive power. The Congress of the United States can do considerably more by way of oversight on what the Executive does, and we are going to have a hearing next Monday on the President's power for surveillance. What is the President's authority in the face of a statute, the Foreign Intelligence Surveillance Act, which requires court approval for certain surveillance operations? What are the President's article II powers as Commander in Chief? There could be a great deal more activism by the Congress. You don't have to wait for these cases to come to the Supreme Court of the United States. But if, as, and when the question does arise, I think Judge Alito outlined the jurisprudential considerations, and he is on target. When it comes to congressional power, we could also do a lot more. The Supreme Court has been insulting in its characterization of our reasoning power, striking down legislation to protect women against violence, disagreeing with our method of reasoning, or striking down portions of the Americans With Disabilities Act, as Justice Scalia said, being a taskmaster. We are preparing legislation in the Judiciary Committee to grant Congress standing to go to court to uphold the constitutionality of our statutes. Mr. President, how much time do I have remaining?

Mr. SPECTER

Mr. SPECTER. Mr. President, I urge my colleagues to invoke cloture on the nomination of Judge Alito to the Supreme Court and to support him on the final vote. As the chairman of the Judiciary Committee, I sat through every minute of the proceedings, reviewed in advance some 250 cases of Judge Alito's, his work in the Justice Department, his work as U.S. Attorney, as Assistant U.S. Attorney, his academic record, and I found him to be eminently well qualified. The objections which have been raised to the nomination turn on those who think he should have been more specific on answering certain questions. But to have been more specific, he would have had to in effect state how he would rule on cases to come before the Court, and that is going too far. He went about as far as he could go. With the critical question of women's right to choose, his testimony was virtually identical to Chief Justice Roberts, and he affirmed the basic principles of stare decisis, a Latin phrase which means ``let the decision stand.'' He is not an originalist. He characterized the Constitution as a living document, as Cardozo did, reflecting the values of our country, the importance of the reliance on precedent, and articulated those views. He also indicated that he had an open mind on the issue of a woman's right to choose, notwithstanding what he had done in an advocacy role for the Department of Justice, notwithstanding any views he had expressed at an earlier date. When it came to the critical question of Executive power, as to how he would handle cases, he subscribed to Justice Jackson's concurrence in the steel seizure cases, which is the accepted model. And here again, he went about as far as he could go in discussing the considerations and the factors which would guide his decisions. When it came to Executive power, again he discussed the considerations which would guide him on his decisions but necessarily stopped short of how he would decide a specific case. He disagreed with the Supreme Court of the United States, which has declared acts of Congress unconstitutional because of our method of reasoning, saying that our method of reasoning somehow was defective compared to the Court's method of reasoning. Judge Alito rejected that. Perhaps most importantly in evaluating the prospects as to how Judge Alito will rule, we have to bear in mind that history shows the rule to be that there isn't a rule. Justice Sandra Day O'Connor, Justice Anthony Kennedy, Justice David Souter before coming to Court all expressed their sharp disagreement with abortion rights; once they got to the Court they have upheld a woman's right to choose. Then there is the classic case of President Truman's nominees on the big Youngstown case on steel seizure, voting contrary to what the President, their nominator, had expected. We heard enormously powerful testimony coming from seven circuit judges, some past, some senior, and some currently active who have worked with Judge Alito. There were precedents for other judges coming forward to testify on behalf of a nominee--but not quite in this number, not quite in this magnitude. The seven judges were uniform in their assessment that Judge Alito has no agenda and has an open mind. These are jurists who know his work well, jurists who go with him after oral arguments into a closed room--no clerks, no secretaries, no recording--they see how he thinks and how he considers cases. I think two judges were especially significant. The first was Judge Edward R. Becker, the winner of the Devitt Award as the outstanding Federal jurist a couple of years ago. Judge Becker has sat with Judge Alito on more than 1,000 cases. He is well known as a centrist and is a highly respected judge. He testified that Judge Alito and he had disagreed on a very small number of cases, about 25. The second was Judge Timothy Lewis, an African American who identifies himself as being very strongly pro-choice, very strong for civil rights. He was seated on the left-hand side of the panel--he made a reference to that reflecting his position on the philosophical spectrum--and testified very strongly on Judge Alito's behalf, saying that if he did not have every confidence in Judge Alito he would not have appeared as a witness in the proceeding. The prepared statement which I filed in the record last week details a great many cases where Judge Alito has decided in favor of the so- called little guy. In the context of the hundreds of decisions that Judge Alito has written and the thousands of cases where he has sat, you could pick out a few and put him with any position on the philosophical spectrum of the court. Candidly, it is a heavy responsibility to cast a vote on a Supreme Court nominee, especially one who is taking the place of Justice O'Connor, a swing vote. But when we look at the traditional standard as to intellect, this man is an A plus. When we look at the traditional standard of character, again he is an A plus. When you look at the standard of experience and public service, he is an A plus. When you look at his analytical style as a jurist, again he is an A plus. Some have objected to nominees because, as some have put it, there is no guarantee. Guarantees are for used cars and washing machines, not for Supreme Court nominees. I believe Judge Alito is well qualified to receive an affirmative vote by the Senate and be confirmed as an Associate Justice of the Supreme Court. I note the distinguished majority leader on the floor. The time left before the cloture vote--almost a full minute--I yield to Senator Frist.

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

Mr. SPECTER

Mr. SPECTER. Mr. President, may I further inquire of the distinguished Democratic leader when his side of the aisle would be prepared to vote on the nomination?

Mr. SPECTER. It is all comparative. If I may direct this comment to Senator Reid, you haven't been to a Republican conference. No matter how dull it is, let me tell you, it is lively here. It is exciting here by comparison to what goes on in our Republican conference. I speak with authority because I just came from there. I thank my distinguished colleague and the Chair and yield the floor for some serious business because we have some speakers.

Mr. SPECTER. Well, Mr. President, I did not say we had more Senators overseas than Senators prepared to work. I said we have more Senators overseas than we have in the Chamber. I counted five, and now a sixth has joined on the floor. Well, as I said earlier, I came to make the point, and I have made the point. The point is that we either debate or we ought to vote. Debate or vote, that is what we do. When the debate is over, we vote. If the debate continues, we do not vote. If the debate continues, we may have to go to cloture. We have rules to accommodate us there. There have been counts made that when you have the number of Senators who have stated their intention to vote for cloture, plus the number of Senators who have stated their intention to vote for Judge Alito, you come to 60 or more. We are ready to do the business of the Senate. I know Senator Frist is watching these proceedings because our conference, at a little after 3 o'clock in the afternoon, reaches a little low point, a little low on blood sugar, things get a little sleepy. So I am sure they turned on the television to watch this. It would be my hope that the Republican leader and the Democratic leader will be on the floor today, and we will come to some sort of a schedule so we all know what to do.

Mr. SPECTER. I thank the Democratic leader for those comments. But Senator Frist, the majority leader, has asked me to come to the floor. He is engaged now in the Republican conference and has asked me to raise these issues so we can give some idea to our colleagues. We have a lot of Senators who are standing by as to what is going to happen. We have a lot of Senators who are not standing by. Quite a few of them are overseas. Quite a few Senators are always overseas. We have more Senators overseas customarily than in the Chamber. I think that is certainly true now. We only have five Senators in the Chamber. I know we have a lot more Senators overseas. So a lot of Senators are trying to make their plans. I came to make the point, and I made the point. I thank the Senator.

Mr. SPECTER. Mr. President, may I inquire of the distinguished Democratic leader whether there will be speakers on his side of the aisle to speak tomorrow, Friday, or Saturday, or Sunday, or Monday, if we are to remain in session without voting on this nomination?

Mr. SPECTER

Mr. SPECTER. Mr. President, I have been asked by the majority leader to come to the floor, as manager of the proceedings, in my capacity as chairman of the Judiciary Committee, to see if we can have a vote on Judge Alito. We have informed the Democrats of our interest in having a unanimous consent, but we will not ask for one until their leader is here. He is on his way, and I will await his arrival. In the interim, the acting leader, Senator Salazar, is on the floor, so he can always protect their interests. But I shall not move in a way precipitously until Senator Reid arrives. I am advised we do not have any speakers for the Democrats tomorrow. We are now in the second full day of our discussion. The rules of the Senate require either that we speak or we vote. If there are no further speakers for the proceedings, then it would be my inclination we ought to follow regular order, we ought to vote. Either we speak or we vote. So long as there is somebody to speak, there is the right of unlimited debate, as we all know, and we respect that. This is a lifetime appointment, and it is a controversial appointment. There is no doubt about that. But if we are not going to have debate, then, in my capacity as manager, as chairman of the Judiciary Committee, it seems to me we ought to vote. We have a lot of other pressing business for the Senate. I have just left the conference of the Republican Party where there had been a plan, months ago, to be out of town so we could make plans for the second session of this Congress. Because the nomination of Judge Alito is on the floor, we have altered those plans, I might say at considerable financial loss since reservations had been made. But our duty is to be here, and we are not complaining about that. We are here to move the business of the Senate along. There are a number of pressing matters which we could take up tomorrow or yet today, such as the issue of appropriations of some $2 billion for LIHEAP. That is a matter for assistance for fuel in a cold winter. It is a cold day out there today. It is cold in Pennsylvania. It is colder in Vermont. It is colder yet in Maine. We need to resolve that issue. We also have the PATRIOT Act, which is due to expire on February 3, a week from tomorrow. That is a very important matter both for security in our law enforcement fight against terrorism and also for a balance on civil rights. And we now have a motion to reconsider the cloture vote pending before the U.S. Senate. There have been discussions about what to do. It is my hope that we would yet approve the conference report. We face the alternative of having the PATRIOT Act expire, which no one wants. We have the suggestion made for a 4-year extension of the current PATRIOT Act which, in my view, is much less desirable than having the conference report enacted. The conference report on a new PATRIOT Act gives much more for civil rights than does the existing act. It is not as good as the Senate bill, the bill that came out unanimously from the Judiciary Committee and was passed by unanimous consent, but the conference report is a lot better than the current bill. So there are other important matters that we could address.

Mr. SPECTER

Mr. SPECTER. Mr. President, I support the nomination by President Bush of Circuit Court Judge Samuel A. Alito, Jr., to the Supreme Court of the United States because he is qualified. In coming to my conclusion, my staff and I have undertaken an extensive review of Judge Alito's record and of his some 361 opinions in total. We have categorized 238 of those as major decisions while serving on the Third Circuit Court of Appeals. We have reviewed 49 of the cases that Judge Alito handled during his tenure as U.S. attorney. We have made an analysis of 43 speeches and articles Judge Alito authorized and evaluations of 38 formal opinions, petitions, and Supreme Court briefs which Judge Alito wrote while serving in the Department of Justice. Additionally, the Judiciary Committee heard testimony of some 30 hours and 20 minutes where we had 17 hours and 45 minutes of questioning of Judge Alito and testimony from 33 outside witnesses. It is on the basis of that voluminous record that it is my personal view that Judge Alito ought to be confirmed. He has a background from a father who was an immigrant from Italy, not born with a silver spoon in his mouth, came up the hard way, had the extraordinary academic record at Princeton and the Yale Law School, worked as an Assistant U.S. Attorney, then was U.S. Attorney and worked in the Department of Justice, and for 15 years has been on the Court of Appeals for the Third Circuit. I think he answered questions put to him more extensively than any other nominee in recent times. I ask unanimous consent that the full text of the prepared statement be printed in the Record at the conclusion of my remarks, which specifies the details of the questions asked and provides analysis of many of his cases.

Mr. SPECTER. Mr. President, before proceeding to the nomination of Judge Alito to the Supreme Court of the United States, I think it worthwhile to comment very briefly on some of the scheduling items for the Judiciary Committee. As we all know, the PATRIOT Act was extended from December 31 until February 3. I circulated a letter today among our colleagues, and I ask unanimous consent that it be printed in the Record at the conclusion of my remarks.

Mr. SPECTER. It outlines the alternatives which we face at the present time. One is to let the act expire on February 3, which I think no one would like. Second would be to extend the current bill for a period of time. We will be discussing a 4-year extension. Or, third, to have cloture imposed on the filibuster which is in effect and then vote to utilize the conference report and pass the act. It is always possible to take another course of action if there is unanimous consent. The conference is technically discharged at this point, and the House of Representatives has made it emphatically clear that they have gone as far as they think it reasonable to go on the compromises. There have been very substantial compromises worked out. At one juncture, there were three additional requests which we took to the House and got all of them, the most important of which was the sunset provision changed from 7 years to 4 years. Then additional changes were requested, and they could not be accommodated. That is where we stand at the present time. I know there are discussions underway to try to get some additional changes made. My own view is those prospects are somewhere between bleak and nonexistent.