Arlen Specter

Mr. SPECTER

Mr. SPECTER. Mr. President, I thank my distinguished colleague for those comments. There is no doubt about the suffering of those who are afflicted with mesothelioma and asbestosis and other ailments. There is also no doubt about the tremendous impact it has on the economy of the United States. It has been estimated that there could be a bigger boost than any kind of tax cuts you could have or any sort of economic recovery program you could have to be able to deal with the more than 75 companies that have gone into bankruptcy and others where bankruptcy is threatened. The amount of work that the Senator from Vermont has specified has been gigantic. It has been 3 years in process. Senator Hatch took the lead with the trust fund concept where the manufacturers and the insurers have agreed to put up some $140 billion into the trust fund with no government payments and not coming out of the pockets of the taxpayers. The meetings which have been held and the efforts and the momentum which we have had can't be recaptured. I think it is fair to say, certainly during my tenure here of 25 years, that I have never seen legislation worked on to the extent this legislation has been, with the complexity of the problem and the involvement of Senators and staff and so-called stakeholders. If it is not now, it is never.

Mr. SPECTER. Certainly.

Mr. SPECTER. A third item of Judiciary Committee scheduling involves the asbestos reform bill. The leader has stated his intention to bring it up on February 6. As we customarily do, we meet in the afternoon. I intend to absent myself from the Judiciary Committee hearing on NSA to come make an opening statement. Then we will proceed on that bill. Senator Leahy and I sent a letter yesterday to our colleagues asking that, if there are amendments to be offered, and I am sure there will be, that they be provided to the managers in advance so we can organize proceeding on the bill and seek time agreements. That has been a very difficult and contentious issue, but it was passed out of the committee last year after numerous executive sessions marking up the bill and extended debate on a variety of amendments. Many were accepted, some were rejected. The Supreme Court of the United States has called upon Congress to address this issue. It does not lend itself to a solution in the courts on class actions. There are thousands of people who are suffering from the injuries of asbestos--mesothelioma, which is deadly, and asbestosis, and others--who cannot recover because their employers are bankrupt. Over 75 companies have gone bankrupt, and more are threatened with bankruptcy. The bill which we have reported to the floor is the product of enormous effort and enormous analysis by the Judiciary Committee and beyond. It was voted out of committee 13 to 5. Senator Leahy and I have convened meetings, along with the assistance of Judge Becker, a senior Federal judge--he had been Chief Judge of the Court of Appeals for the Third Circuit--where we have brought in the so-called stakeholders: the insurers, the trial lawyers, the AFL/CIO, and the manufacturers. They worked through that bill which has festered in the Congress for more than two decades. I first saw it when Gary Hart, then-Senator from Colorado, brought in Johns Manville, which was a key constituent of his, which was having a problem. I believe it is clear that if we are not able to act now, it will be decades before this kind of an effort can be mustered again. I have one additional comment on the scope of the work. After it was passed out of committee in late July of 2003, I asked Judge Becker to assist as a mediator. We had meetings in his chambers in Philadelphia-- two full days in August. We have had about 50 meetings since, attended by sometimes more than 40 or 50 people. We are still open for business to consider modifications. We know the legislative process is one where, when it comes to the floor, there are amendments. There are more ideas. But this is an issue which is of tremendous urgency. The President has spoken about it. The President wants it enacted. The majority leader is firmly behind legislation by the Senate. The Speaker of the House of Representatives has spoken about it. But candidly and openly, we face very powerful interests who are opposed to any action. There are very substantial dollars involved. There is very substantial pain and suffering involved. Those of us who have worked on the bill--led by the distinguished Senator from Vermont and myself and others--have gone to the well and gone to the wall. We still are open for business and invite comments. But anybody who has amendments, we would like to hear from you as early as possible so we can consider them, try to work out time agreements, and try to move the bill ahead in a managers' context. I am glad to yield to Senator Leahy.

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, Judge Alito came under very extensive questioning on the issue of a woman's right to choose because of his work on a brief on the Thornburgh case where he advocated not reversal of Roe v. Wade but cut back on some of the provisions, and because of a statement which he had made in 1985 when applying for a position with the Federal Government where he expressed the view that the Constitution did not protect the right to an abortion. Judge Alito testified at length that he has an open mind on this subject. I think it is fair to say that when a comment is made by a lawyer in an advocacy capacity that it represents the view of a client on a position taken and not a personal view. With respect to the statement that he made about his view of the Constitution in 1985, he has since gone to great lengths to analyze the Supreme Court's decisions on the issue of a woman's right to choose and has made assurances that he has an open mind on the subject. He was questioned extensively on this issue. I led off with it for 20 minutes on my first round of questioning. And Judge Alito expressed his regard for stare decisis, the Latin expression for let the decision stand. He commented that he agrees with the position of Chief Justice Rehnquist on the Miranda case involving suspects' rights on statements and confessions. Chief Justice Rehnquist, earlier in his career, had been against Miranda and later changed his view to support Miranda once, as the Chief Justice put it, it became embedded in the culture of police practices. And Judge Alito stated that he thought there was weight to be accorded to cultural changes. I think it is fair to have that statement of principle apply on a woman's right to choose. Judge Alito later testified that he agreed with Justice Harlan's dissent in the case of Poe v. Ullman, that the constitution is a living document; and that agreed with Justice Carodza in Palko v. Connecticut that it reflects the changing values and mores of our society. He is not an originalist. He does not look only original intent. He does not look only to the static black letter, but he understands the importance of evolving values and of evolving reliance. I questioned him at length about the reliance factor in Casey v. Planned Parenthood. I think Judge Alito went as far as he could go on the assurances of maintaining an open mind on this important subject. When it came to the issue as to whether he reviewed it and regarded it as settled law, his testimony was virtually identical to the testimony of Chief Justice Roberts, who testified that it was settled. As Chief Justice Roberts put it in his confirmation hearings, it is settled beyond that. Chief Justice Roberts left open the unquestionable right and duty of the Court to review all cases on the merits when they are presented and to afford appropriate weight to stare decisis and to precedents, but not to take the position that precedents can never be overturned. I think a fair reading of the record is that Judge Alito went about as far as he could go without answering the question as to how he would rule on a specific case, which would be beyond the purview of what a nominee ought to do. In taking up questions of Executive power, Judge Alito could not answer questions posed about the President's authority to go to war with Iran. How could a nominee answer a question of that magnitude in a nomination proceeding without knowing a lot more about the circumstances? And judges make decisions after they have a case and controversy, when they have briefs admitted, when they have arguments prepared, when they have discussions with their colleagues, and they reflect on a matter and come to conclusion, not sitting at a witness table in a Judiciary Committee hearing. Judge Alito answered the questions as to the considerations which would be involved. Again, he went about as far as he could go. On the question of congressional power, I questioned him at length on concerns I have about what the Supreme Court has had to say about declaring acts of Congress unconstitutional because the Supreme Court disagrees with our ``method of reasoning.'' The columns of the Senate building are lined up exactly with those of the Supreme Court, situated across the green. An interesting historical note, in an early draft of the Constitution, the Senate was to nominate Supreme Court Justices. That would be an interesting process, given the political complexion of the Senate today. Back to the point. What superior wisdom and what superior method of reasoning comes when a person crosses the green to the Supreme Court of the United States? Our method of reasoning may not be too good, but it is our method of reasoning. To have the Court say that they declare acts unconstitutional because they do not like our method of reasoning is, candidly stated, highly insulting. Judge Alito said the obvious: Our method of reasoning was as good as the Court's. Then in the decision on the Americans with Disabilities Act, where the Supreme Court has imposed a test of what is proportionate, taking it out of thin air in a 1997 decision, what is ``congruent and proportionate'' is a test which cannot be applied with any consistency. It lends itself to legislation from the bench. Justice Scalia characterized it accurately, calling it ``a flabby test,'' where the Court was functioning as the taskmaster of Congress to see that we had done our homework. Judge Alito's answers showed an appropriate respect for separation of powers and congressional authority. The decisions of the Supreme Court questioning the constitutionality of statutes has led a number of Senators on the committee to prepare legislation which would give the Congress standing to go to the Supreme Court to argue to uphold our legislation. We thought initially about having a Judiciary Committee observe what the Court had done and from that, thought about seeking to intervene as amicus curiae, as a friend of the court, and took it the final step: Why not go to the Court and argue our cases ourselves, through counsel, which is an appropriate way. Congress has the authority to grant standing. We can grant standing to ourselves to see to it that our views are appropriately presented to the Court. We respect the Court as the final arbiter of the Constitution. That is our system. But the arguments and the considerations and the record which Congress amasses ought to be considered by the Court. Now the constitutionality of statutes is upheld by the Solicitor General. But in cases where there is a conflict between what the Congress has to say and what the President has to say, we ought to be in a position to make our own submissions to the Court. The issue of Executive authority and the current surveillance practices came up for discussion in Judge Alito's confirmation hearings. Again, he could not say how he would rule on the case if it came before him. He would have to read the briefs, hear the arguments, consider it. But he responded by giving us the factors and items which he would consider. Many issues were discussed. Judge Alito approached them with an open mind. One subject of particular concern to this Senator is the issue of televising the Court, which I think ought to be done. The Supreme Court of the United States today makes the final decisions on so many of the cutting-edge questions of our time. The American people ought to know what is going on. A number of the Justices appear on television programs. There is no reason why the Court proceedings should not be televised. Senator Biden and I made that specific request on the case of Bush vs. Gore and got a response from Chief Justice Rehnquist denying it; however, they released an oral transcript of the proceedings at the end of the day and the Court is doing more of that, which is a step forward. The Congress has the authority to make decisions on the administration of the Court. For example, the Congress decides how many Supreme Court Justices there will be. We established the number at nine. Remember, in the Roosevelt era there was an effort to pack the Court and increase the number to 15. That is a congressional judgment. We decide when the Court starts to function: The third Monday in October. We decide what is a quorum of the Court: Six. We legislate on speedy trial rules. It is within the purview of the Congress to legislate, to call for the televising of their proceedings. I recognize the ultimate decision would rest with the Court if they decided to declare our act unconstitutional. Under separation of powers, that is their prerogative. I respect it. We ought to speak to the subject. On the subject of television, again, Judge Alito did not give the answer I liked to hear--that he is for television in the Court--but he said he had an open mind and would consider it. Again, that is about as far as he could go. One panel of particularly impressive witnesses was seven judges from the Court of Appeals from the Third Circuit who had worked with Judge Alito. There is precedence for judges testifying. Retired Chief Justice Warren Burger came in to testify in the nomination proceedings for Judge Bork. That is something for which there is precedent. These judges have unique knowledge of Judge Alito because they have worked with him in many cases. Judge Becker, for example, former Chief Judge of the Third Circuit, now on senior status, sat with Judge Alito on more than 1,000 cases. Judge Becker has a national reputation as an outstanding jurist. Recently, he received the award as the outstanding Federal judge in the country. He testified about Judge Alito not having an agenda, not being an ideologue and having an open mind. Judge Becker is regarded very much as a judge's judge, a centrist judge, and pointed out he and Judge Alito have disagreed very few times--about 25 times--during the course of considering more than 1,000 cases. After the arguments are concluded, the three judges who sit on the panel retire and discuss the case among themselves; no clerks present, no secretaries present, just a candid discussion about what went on. That is where the judges really let their hair down and talk about the cases and get to know what a judge thinks. It is a high testimonial to Judge Alito that these judges sang his praises, in terms of openness and in terms of studiousness and in terms of not having an agenda. One of the witnesses, former Judge Tim Lewis of the Third Circuit, an African American, testified about his own dedication to choice for a woman's right to choose, his own dedication to civil rights, civil liberties, and testified very forcefully on Judge Alito's behalf. He said very bluntly he would not be there if he did not have total confidence in Judge Alito. One further comment: That is on the party-line vote which we seem to be coming to. He was voted out of committee, 10 to 8; 10 Republicans voting for Judge Alito; 8 Democrats voting against Judge Alito. It is unfortunate our Senate is so polarized today. I believe this Senate and this body would benefit greatly by more independence in the Senate. I have not voted in favor of Judge Alito as a matter of party loyalty. If I thought he was not qualified, I would vote no, as I have in the past on nominees of my own party from Presidents of my own party. But we need to move away from the kind of partisanship, which has ripped this body in recent times. I think it is important the American people have confidence in what the Senate does on the merits and that we avoid projecting the appearance of rank politics. I believe it is important for Judge Alito to have supporters who favor a woman's right to choose so he does not feel in any way beholden to or confirmed by people who have one or another idea on some of these questions. Without naming names and identifying people, we have more than six Republicans who are pro-choice, who support a woman's right to choose. So the balance of power will be, if confirmed, not only on one side of that issue or another. But I think we would do well to reexamine the procedures which we utilize in the confirmation process to try to move away from partisanship and towards getting an idea of the judge's temperament, his background, his jurisprudence, where he stands, without pressing him to the wall as to how he stands on any particular issue. When we had the nomination of White House Counsel Harriet Miers, she was opposed by some because, as one person put it, there was no guarantee she would vote to overturn Roe. Well, you cannot get guarantees from Supreme Court nominees. I have said before, and I think it is worth repeating, guarantees are for used cars and washing machines. They are not for nominees to the Supreme Court of the United States. I think, when we examine temperament and background, including jurisprudence, those are the appropriate tests. No one knows with certainty how Judge Alito is going to vote. The cases are full of surprises. Justice Sandra Day O'Connor was very much opposed to abortion rights before she came to the Court. And she has been one of the foremost proponents of a woman's right to choose, subject to some limitations. Justice Anthony Kennedy spoke very disparagingly about abortion rights before coming to the Court, and he has supported Roe v. Wade. Justice David Souter, as attorney general for New Hampshire, opposed repealing New Hampshire's law banning abortions, even after it had been declared unconstitutional by the Supreme Court of the United States. The National Organization for Women had a rally on Capitol Hill when David Souter was up for confirmation in 1991--I remember it well; I was there--with big placards ``Stop Souter or Women Will Die.'' Justice Souter, too, has supported Roe v. Wade. So no one knows what will happen. President Truman was disappointed by his nominees in the famous steel seizure case. Again and again and again, there have been surprises. The rule is, there is no rule. So on the committee and in the Senate we are left to our best judgment as to qualifications without guarantees. The separation of powers entrusts to the President the role of making the nominations. It is up to the Senate to make an evaluation and then to confirm or not confirm. After that, it is up to the Justices to make the decisions on the Court. The separation of powers has served us well. Those are the facts which have led me to vote Judge Alito out of committee affirmatively. And my vote will be cast when the roll is called later in this floor debate. Exhibit 1 alito floor statement Mr. President, today the Senate begins the debate on the confirmation of Judge Samuel A. Alito to be an Associate Justice of the United States Supreme Court. It has been 86 days, nearly three months, since President Bush announced his choice of Judge Samuel Alito to fill the seat being vacated by Justice Sandra Day O'Connor. During this time, my staff and I have undertaken an extensive review of Judge Alito's record, including an examination of his 238 major decisions while serving on the Third Circuit Court of Appeals, a review of 49 of the cases Judge Alito handled during his tenure as a United States Attorney, analyses of 43 speeches and articles Judge Alito authored, and evaluations of the 38 formal opinions, petitions, and Supreme Court briefs which Judge Alito wrote while serving in the Department of Justice. Additionally, the Judiciary Committee held 30 hours and 20 minutes of hearings, which included 17 hours and 45 minutes of questioning of Judge Alito and testimony from 33 outside witnesses. Based on my thorough review of his record, I intend to vote to confirm Judge Alito as the 110th Justice of the United States Supreme Court. I did not reach this decision lightly. As I have said before, except for a declaration of war or its virtual equivalent, a resolution for the use of force, no Senate vote is as important as the confirmation of a Supreme Court justice. And this vote is one that requires Senators to free themselves from the straight-jacket of party loyalty and exercise independent judgment. Under separation of powers, Senators are separate from the executive branch and have a full, independent role in staffing the Third Branch of government. I have long adhered to this view, which led me to vote against Judge Bork's confirmation, even though he was nominated by a President of my own party. If I thought Judge Alito should not be confirmed, I would vote no again. Judge Alito has sterling academic credentials, having excelled at Princeton University and the Yale Law School. Judge Alito began his lifetime commitment to public service with a prestigious clerkship for Judge Leon I. Garth of the United States Court of Appeals of the Third Circuit. For the next thirteen years, Judge Alito served his country as an Assistant to the U.S. Solicitor General, a Deputy Assistant Attorney General in the Office of Legal Counsel, and as both the United States Attorney for New Jersey and an assistant United States Attorney in that same office. When Judge Alito was appointed to his current position on the Third Circuit Court of Appeals, the ABA unanimously voted to award Judge Alito its highest possible rating, and Judge Alito enjoyed broad bipartisan support, as reflected by the fact that he was confirmed by unanimous consent. Judge Alito's achievements are all the more impressive when one realizes that Judge Alito was not born with a silver spoon in his mouth. Judge Alito's father was brought to this country from Italy as an infant and grew up in poverty. Although his father graduated at the top of his high school class, he had no money for college, and he was set to work in a factory. It was only because at the last minute, a kind person arranged for him to receive a $50 scholarship, that he was able to attend college. Despite the discrimination he faced as an Italian immigrant in 1935, Judge Alito's father eventually became a teacher, served in the Pacific during World War II, and held a nonpartisan position for the New Jersey Legislature. Judge Alito put it best when he said: ``my parents taught me through the stories of their lives . . . and it is the story, as far as I can see it, about the opportunities that our country offers and also about the need for fairness and about hard work and perseverance and the power of a small good deed.'' I have participated in the confirmation hearings for the past eleven nominees to the Supreme Court. Although judgments may differ, I think that Judge Alito went farther in answering questions than most Justices in the past. Indeed, Senator Biden commented, ``you have been very gracious. I appreciate you being responsive.'' By one reckoning, Judge Alito was asked 677 questions and answered some 659--97%. That is far more than Justice Ginsburg, who answered only 307 out of 384 questions, or 80%, or Justice Breyer, who answered only 291 out of 355 questions, or 82%. Judge Alito did not refuse to respond because a similar case might come before the Court. He ultimately stopped short of making commitments as to how he would vote, as he should. But for each topic that was raised, Judge Alito discussed the relevant constitutional considerations and his judicial philosophy. For example, on the topic of a woman's right to choose, Judge Alito agreed that the Constitution creates a right to privacy. I asked Judge Alito whether he agreed with the Supreme Court's holding in Eisenstadt, which established that unmarried women have a constitutional right to contraception and was an underpinning of the Supreme Court's decision in Roe v. Wade. Judge Alito replied directly, ``I do agree with the result in Eisenstadt.'' When Senator Feinstein asked Judge Alito whether the Constitution guarantees a right to privacy, Judge Alito responded: ``The 14th Amendment protects liberty. The Fifth Amendment protects liberty. And I think it is well accepted that this has a substantive component, and that that component includes aspects of privacy that have constitutional protection.'' Judge Alito also discussed whether Roe v. Wade is so well established that it should not be overturned. Judge Alito stated: ``I agree that in every case in which there is a prior precedent, the first issue is the issue of stare decisis, and the presumption is that the Court will follow its prior precedents. There needs to be a special justification for overruling a prior precedent.'' Some Members of the Judiciary Committee have argued that Judge Alito was less forthcoming on this issue than Chief Justice Roberts was during his Supreme Court confirmation hearing, when he called Roe v. Wade ``settled law.'' Comparing the testimony of the two nominees, I cannot see a dime's worth of difference between their responses. I asked Chief Justice Roberts what he meant when, as a nominee for the circuit court, he said Roe was settled law. Specifically, I asked him if he meant it was settled for him as a circuit court judge, or if it was settled beyond that, even as a Supreme Court Justice. He answered: ``beyond that, it's settled as a precedent of the Court, entitled to respect under principles of stare decisis.'' Similarly, Judge Alito testified that ``Roe v. Wade is an important precedent of the Supreme Court'' and that the Court's reaffirmation of that case ``strengthens its value as stare decisis.'' Moreover, both Chief Justice Roberts and Judge Samuel Alito testified that they agreed with the result in Eisenstadt, that unmarried people may not be denied contraception, and with the foundational case of Griswold v. Connecticut, which guaranteed that same right to married couples. Both Chief Justice Roberts and Judge Samuel Alito agreed that with the view that the Constitution's Due Process Clause includes a substantive protection of privacy--the legal view underpinning Roe v. Wade. And both Chief Justice Roberts and Judge Samuel Alito refused to make commitments on how they would vote in abortion cases, including how they would rule if Roe came before the Court again. This is as it should be: no nominee for the Supreme Court or any other Court should be required to commit to how they would rule on a potential case before them. I was pleased to hear Judge Alito confirm that he does view the Constitution as a living document. Judge Alito stated, ``I think the Constitution is a living thing in the sense that matters, and that is . . . it sets up a framework of Government and a protection of fundamental rights that we have lived under very successfully for 200 years, and the genius of it is that it is not terribly specific on certain things. It sets out some things are very specific, but it sets out some general principles, and then leaves it for each generation to apply those to the particular factual situations that come up. . . . As times change, new factual situations come up, and the principles have to be applied to those situations. The principles don't change. The Constitution itself doesn't change, but the factual situations change, and as new situations come up, the principles and the rights have to be applied to them.'' Judge Alito's record confirms that he is not an ideologue on a crusade to curtail Roe v. Wade. He has upheld a woman's right to choose even when he had the discretion to limit abortion rights. For example, in the 1995 case of Elizabeth Blackwell Medical Center for Women v. Knoll, Judge Alito struck down two abortion restrictions by the State of Pennsylvania. The first provided that a woman who became pregnant due to rape or incest could not obtain Medicaid funding for her abortion unless she reported the crime to the police. The second provided that if a woman needed an abortion to save her life, she had to obtain a second opinion from a doctor who had no financial interest in the abortion. The question was whether these laws conflicted with a federal regulation issued by the Secretary of Health and Human Services. The case did not involve a question of constitutional law. There was no binding Supreme Court precedent on point. Judge Alito easily could have upheld the abortion restrictions if he wished to. Indeed, another Third Circuit judge appointed by President Reagan voted to do just that. But Judge Alito voted to strike down both laws in favor of a woman's right to choose. This is not the behavior of someone bent on chipping away at Roe v. Wade. This is the behavior of a moderate jurist who understands the importance of precedent. The fact is that, notwithstanding Senators' concerted efforts, it is not possible to predict how Judge Alito will rule on the issue of abortion. If there is a rule on expectations, it is probably one of surprise. Two or three decades ago, no one would have predicted that Justices O'Connor, Kennedy, or Souter would have voted to uphold a woman's right to choose. At her confirmation hearing, Justice O'Connor testified that she personally viewed abortion with ``abhorrence'' and stated, ``my own view in the area of abortion is that I am opposed to it as a matter of birth control or otherwise.'' Yet, roughly 10 years later, she voted to uphold Roe v. Wade and has done so ever since. Justice Kennedy explained that he ``was brought up to think of abortion as a great evil. He once denounced the Roe decision as the Dred Scott of our time, a reference to the infamous 1857 ruling that sanctioned slavery and helped spark the Civil War.'' Yet, in 1992, Justice Kennedy cast the deciding vote in Casey v. Planned Parenthood to uphold Roe v. Wade. When he was New Hampshire Attorney General, Justice Souter filed a brief arguing that tax payer dollars should not be used to fund ``the killing of unborn children'' and defended abortion laws that had already been undermined by Roe v. Wade. During his confirmation hearing, the National Organization for Women organized a rally against his confirmation entitled ``Do or Die Day'' and distributed flyers proclaiming ``Stop Souter or women will die.'' Yet, on the Supreme Court, Justice Souter has consistently voted to uphold a woman's right to choose. Similarly, there have been dire predictions about Judge Samuel Alito. The National Organization for Women has released another flyer--this one declaring ``Save Women's Lives. Vote No on Alito.'' The rule is that there is no rule. Judge Alito was also questioned extensively on Executive power and whether the resolution for the authorization of use of force gave the President authority to engage in electronic surveillance. When I asked Judge Alito whether he agreed with Justice O'Connor's statement in Hamdi that ``We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens,'' Judge Alito responded, ``Absolutely. That's a very important principle. Our Constitution applies in times of peace and in times of war, and it protects the rights of Americans under all circumstances.'' Judge Alito went somewhat beyond the usual practice of answering just as many questions as he needed to in order to be confirmed. While he would not commit to giving answers to hypothetical situations which may come before the Court, he fully explained his methods of reasoning. For example, when questioned by me and other Senators about how he would decide questions dealing with the limits of executive power, he responded that he would apply Justice Jackson's framework from the Youngstown Steel case: ``[A]s I said, the President has to follow the Constitution and the laws and, in fact, one of the most solemn responsibilities of the President--and it is set out expressly in the Constitution--is that the President is to take care that the laws are faithfully executed, and that means the Constitution, it means statutes, it means treaties, it means all of the laws of the United States. ``But what I am saying is that sometimes issues of Executive power arise and they have to be analyzed under the framework that Justice Jackson set out. And you do get cases that are in this twilight zone and it is--they have to be decided when they come up based on the specifics of the situation.'' When Judge Alito was similarly questioned about the President's power to control the executive branch, he responded by explaining in full: ``[A]s to the agencies that are headed by commissions, the members of which are appointed for terms, and there are limitations placed on removal, the precedents--the leading precedent is Humphrey's Executor and that is reinforced, and I would say very dramatically reinforced, by the decision in Morrison, which did not involve such an agency. It involved an officer who was carrying out what I think everyone would agree is a core function of the executive branch, which is the enforcement of the law, taking care that the laws are faithfully executed. . . . ``[W]hat I have tried to say is that I regard this as a line of precedent that is very well developed and I have no quarrel with it and it culminates in Morrison, in which the Supreme Court said that even as to an inferior officer who is carrying out the core executive function of taking care that the laws are faithfully executed, it is permissible for Congress to place restrictions on the ability of the President to remove such an officer, provided that in doing so, there is no interference with the President's authority, and they found no interference with that authority there. That is an expression of the Supreme Court's view on an issue where the claim for--where the claim that there should be no removal restrictions imposed is far stronger than it is with respect to an independent agency like the one involved in Humphrey's Executor.'' I have expressed my concern, for some time now, about the case of United States v. Morrison, where the Supreme Court declared part of the Violence Against Women Act unconstitutional. The majority opinion in that case dismissed lengthy Congressional findings because five justices disagreed with our ``method of reasoning.'' The inference was that they believed the Court has a superior method of reasoning to the Congress. I believe that the Constitutional separation of powers rejects that kind of view and I know that many of my colleagues share this concern. I asked Chief Justice Roberts about this during his confirmation hearings and I raised it again with Judge Alito. Judge Alito said that: ``I would never suggest that judges have superior reasoning power than does Congress . . . I think that Congress' ability to reason is fully equal to that of the judiciary.'' The Judiciary Committee had the rare, but not unprecedented, opportunity to hear from seven of Judge Alito's current and former colleagues on the Third Circuit. These men and women, Democrat and Republican appointees, know his record best. They have heard cases with him and sat in conference with him, they have worked to craft opinions with him. The process that appellate judges go through in rendering decisions is not familiar to many people and it was very instructive to have the insight of these judges. Judge Edward Becker, the former Chief Judge of the Third Circuit is one of the most acclaimed jurists of our time. He recently won the coveted Devitt Award as the Outstanding Federal Jurist of the year. I know Judge Becker very well since our college and law school days, so, I take his views seriously. Judge Becker has sat on over a thousand cases with Judge Alito and, as he testified, they only disagreed 27 times. In each of those cases, Judge Becker testified, Judge Alito's ``position was closely reasoned and supportable either by the record or by his interpretation of the law, or both.'' Judge Becker testified that he knows Judge Alito approaches judging with no agenda and was not an ideologue. He said, ``The Sam Alito that I have sat with for 15 years is not an ideologue. He is not a movement person. He is a real judge deciding each case on the facts and the law, not on his personal views, whatever they may be. He scrupulously adheres to precedent. I have never seen him exhibit a bias against any class of litigation or litigants.'' The current Chief Judge of the Third Circuit, Judge Anthony Scirica, confirmed this view of Judge Alito, as did Judge Maryanne Trump Barry, and all the other current and retired judges who testified. I thought that the testimony of Judge Timothy Lewis was particularly influential, given his background. He is an African American who described himself at the hearing as ``unapologetically pro-choice'' and as ``a committed human rights and civil rights activist.'' He joked that it was no coincidence that he happened to be sitting at the ``far left'' end of the panel of judges. Still, based on his personal knowledge of the kind of judge Judge Alito is, Judge Lewis spoke enthusiastically in his favor. He said: ``having worked with him, I came to respect what I think are the most important qualities for anyone who puts on a robe, no matter what court they will serve on, but in particular the United States Supreme Court, and first and foremost among these is intellectual honesty.'' He testified that ``I cannot recall one instance during conference or during any other experience that I had with Judge Alito, but in particular during conference, when he exhibited anything remotely resembling an ideological bent. That does not mean that I agreed with him, but he did not come to conference or come to any decision that he made during the time that I worked with him based on what I perceived to be an ideological bent or a result-oriented demeanor or approach. He was intellectually honest, and I would say rigorously so, even with respect to those areas that he and I did not agree.'' In the area of civil rights, Judge Alito has a strong record. In his tenure as the U.S Attorney for New Jersey, he took steps to diversify the office--hiring and promoting women and minorities. Since taking the bench, he has continued to demonstrate a commitment to civil rights. Of course, when a judge has decided over 4,800 cases, as Judge Alito has, it is possible to select a few of his cases to place him at any and every position on the judicial spectrum. But, on balance, Judge Alito's record in this area is more than satisfactory. Again, Judge Lewis's testimony is instructive. He told the Committee that ``[I]f I believed that Sam Alito might be hostile to civil rights as a member of the United States Supreme Court, I can guarantee you that I would not be sitting here today.'' Coming from some one with an unquestioned commitment to civil rights who has worked closely with Judge Alito, that testimony is entitled to considerable weight. Judge Lewis' testimony supported my view of Judge Alito from examining his cases. Indeed, I have found many cases where he has defended civil rights and the interests of African Americans. For example: In U.S. v. Kithcart, Judge Alito held that the Fourth Amendment does not allow police to target drivers because of the color of their skin. After a police officer received a report that two black men in a black sports car had committed three robberies, she pulled over the first black man in a black sports car she saw. Judge Alito ruled that this violated the Constitution. In Brinson v. Vaughn, Judge Alito ruled that the Constitution does not allow prosecutors to exclude African Americans from juries. In that case, the prosecutor had used 13 of his 14 ``strikes'' to exclude African-Americans from the jury, but argued that this was not a problem, because he allowed 3 African-Americans onto the jury. Judge Alito explained that the prosecutor could not get around the Constitution by allowing a handful of African-Americans onto the jury. In Zubi v. AT&T Corp., Judge Alito authored a lone dissent, opposing the establishment of a stringent limitations period in which civil-rights plaintiffs would have to file a claim. The Supreme Court unanimously vindicated Judge Alito's position four years later. In Reynolds v. USX Corporation, Judge Alito ruled in favor of Deborah Reynolds, an African-American woman who was subjected to racial and sexual harassment at work. Her employer claimed that the company shouldn't be liable because the harassment came from her coworkers, rather than supervisors. Alito concluded that her supervisors were aware of the harassment and the company had a duty to end it. During Judge Alito's time on the bench he has also demonstrated great sensitivity to the unique challenges faced by people with disabilities. He understands that people with disabilities are still subject to discrimination in our society and that they are entitled to full civil rights. As he testified at his hearing: ``When I have a case involving someone who's been subjected to discrimination because of disability, I have to think of people who I've known and admired very greatly who had disabilities and I've watched them struggle to overcome the barriers that society puts up, often just because it doesn't think of what it's doing, the barriers that it puts up to them.'' He has issued several important decisions vindicating the rights of people with disabilities. Thomas v. Commissioner of Social Security, which Judge Alito discussed at his hearing, is a good example of this. It is also one of the few cases where Judge Alito was reversed by the Supreme Court--in this instance unanimously--because the Court thought that Judge Alito went too far to protect the ``little guy.'' In that case, Judge Alito ruled in favor of a woman with disabilities who sought social security benefits. The Social Security Administration concluded that the plaintiff was not entitled to benefits because she could still perform her former job as an elevator operator--even though such jobs no longer exist. Judge Alito thought that such a rigid application of the law ``sets up an artificial roadblock'' to people seeking disability benefits. He saw ``no plausible reason why Congress might have wanted to deny benefits to an otherwise qualified person simply because that person, although unable to perform any job that actually exists in the national economy, could perform a previous job that no longer exists.'' Thomas is only one example of Judge Alito's strong record on disability rights. He has ruled in favor of numerous workers, students, customers, and disability advocacy groups on disability-related claims. Often times, he has reversed the rulings of lower courts to do so. Other examples include: Shapiro v. Township of Lakewood, where Judge Alito authored the majority opinion in favor of an EMT technician who became disabled on the job and was denied an interdepartmental transfer to a position as a police dispatcher. Fiscus v. Wal-Mart Stores, Inc., where Judge Alito ruled in favor of a victim of disability discrimination who suffered from end-stage renal disease and sought permission from her employer to self-administer dialysis every four to six hours during the workday. Judge Alito voted to reverse the lower courts ruling that kidney failure was not covered by the Americans with Disabilities Act. Mondzelweski v. Pathmark Stores Inc., where Judge Alito ruled in favor of a meat cutter who became injured on the job and could no longer lift heavy objects. He overturned the judgment of a lower court that refused to consider his disability in light of his low education and skill level. Judge Alito believe that the impact of a disability had an individual's inability to work must take into account his particular background and skills. Shore Regional High School Board of Education v. P.S., where Judge Alito again reversed a lower court to find in favor of a plaintiff with disabilities. The plaintiff in that case was a child with disabilities who had suffered severe harassment from bullies at his school. Because an Administrative Law Judge had found that the student could not get an appropriate education in this environment, Judge Alito ruled that the students' parents should be reimbursed for tuition at a neighboring public high school. Pennsylvania Protection & Advocacy, Inc. v. Houstoun, where Judge Alito sided with a group advocating for the rights of the mentally ill and ordered a state hospital to release internal reports on the death of a patient who attempted suicide and later died under hospital care. He rejected the state of Pennsylvania's arguments that these documents were protected from release under state law. Judge Alito has authored a number of other important, progressive, opinions, vindicating the rights of the so- called ``little guy''. For example, in Fatin v. INS, Judge Alito held that an Iranian woman could establish a basis for asylum if she showed that compliance with Iran's gender specific laws would be deeply abhorrent to her or that the Iranian government would persecute her because of her gender. This is a landmark case that established gender-based discrimination as possible grounds for asylum. In Alexander v. University of Pittsburgh Medical Center System, Judge Alito dissented from the court's ruling in favor of a hospital in a medical malpractice case. A young woman had been hospitalized for a rare illness of the liver. Based on advice from several doctors, her parents waited for one and one-half months before ordering a liver transplant. The young girl died, and the parents sued. The jury ruled for the parents and awarded substantial damages. The majority of the Third Circuit reversed the jury's verdict against the doctors, explaining that the trial court judge should have instructed the jurors to consider whether the parents were partly responsible for the young girl's death. Judge Alito dissented, concluding that the fault for any poor decision rested with the defendant doctors, not the parents. Judge Alito wrote: ``Except perhaps in truly extreme cases, it is not negligent for a patient such as Alyssa or her parents to follow the advice of primary care physicians.'' In Cort v. Director, Judge Alito wrote an opinion ruling for and awarding benefits to a former coal miner under the Black Lung Benefits Act. An Administrative Law Judge had denied the worker's claim, finding that since he was able to obtain work as a wire cutter, he wasn't disabled. Judge Alito found that the statute and associated regulations established a presumption of total disability due to Black Lung when a claimant worked for more than 10 years as a miner and met one of four medical requirements--which the plaintiff satisfied. He reasoned that the statue focused on the source of disability, not its degree. These cases are just a few examples from Judge Alito's lengthy record. My staff has identified and analyzed scores of cases where Judge Alito has ruled for minorities, immigrants, people with disabilities, prisoners, and other disadvantaged plaintiffs. It is this record that has won him the enthusiastic support of his fellow judges on the Third Circuit. Judge Alito is anything but a ``stealth'' candidate. Those who opposed Chief Justice Roberts' nomination asked for a nominee with a deeper record to analyze. In Judge Alito, they have such a person. The Committee had the opportunity to review literally thousands of decisions and some 461 written opinions. It also had the opportunity to hear directly from Judge Alito as he gave lengthy testimony. In three days of intense questioning in which he spent over 18 hours in the witness chair, Judge Alito was asked roughly 677 questions. By comparison, Justice Ginsburg was asked 384 questions and Justice Breyer was asked only 355 questions. Clearly, Judge Alito's record has been vetted as thoroughly as any nominee's possibly could be. It is on the basis of this record that I reached my conclusion to vote aye on the nomination of Judge Alito to be an Associate Justice of the United States Supreme Court. I thank the Chair and I now yield the floor.

Mr. SPECTER. Mr. President, I thank the Senator from Vermont for his comments. I thank him for the hard work he has done in the past year on the Judiciary Committee on many matters, including the PATRIOT Act. I think we have set a tone and have been able to agree on almost all matters. If there can be some modifications made, agreeable on all sides, before February 3, I would be more than willing to be a party to that. My preference is the bill which passed the Senate, but we have a bicameral system, and the House has its own point of view, and I think they have been reasonable. We have a good bill, certainly a bill in the conference report which is vastly improved with respect to civil rights over the current bill. But I am not in favor of having short-term extensions. If we have another short-term extension, it will beget another short-term extension. I want to fish or cut bait before February 3 on that issue. The Judiciary Committee, on the second item, is scheduled to hold a hearing on the wartime Executive power and NSA's surveillance authority on February 6. I think my colleagues will be interested in a letter which I have written to the Attorney General dated January 24, yesterday, outlining a series of some 15 questions to be addressed in advance of the hearing or at the time of the Attorney General's opening statement--at least that request--to try to set the parameters and issues of that hearing. I ask unanimous consent that the letter to Attorney General Gonzalez be printed in the Record at the conclusion of my statement today.

Mr. SPECTER

Mr. SPECTER. On a close call I have decided to vote for the conference report on the reconciliation bill because the benefits slightly outweigh the disadvantages in evaluating the tradeoffs. I start with the proposition that the savings of $40 billion over 5 years in the conference report is closer to the $35 billion passed by the Senate than to the $50 billion cuts passed by the House of Representatives. This deficit reduction amounts to less than one-half of 1 percent of total Federal spending, an estimated $13.8 trillion over the next 5 years. Medicaid was a special concern where the conference report of a $4.8 billion reduction was much closer to the Senate figure of $4.3 billion than to the House cut of $11 billion. While I would have preferred targeting different reductions, the conference report does give the States flexibility in the use of Medicaid funds so that the States will be in a position to ameliorate hardships resulting from the proposed reductions. It was important that the conference report included $1 billion in additional budget authority in fiscal year '07 for the Low Income Home Energy Assistance Program, LIHEAP, which the Congressional Budget Office estimates will result in $625 million in outlays as we approach the fiscal year 07 winter season which is likely to be very harsh. It is anticipated that there will be an additional $2 billion for fiscal year '06 added to LIHEAP in the Defense appropriations bill although that is not a certainty because the Senate will not act on that bill until after the vote on reconciliation. I am further encouraged by the elimination of some $700 million on cuts for the Food Stamp Program and the rejection of the House passed $5 billion reduction in child support enforcement to aid local governments which finally came in at a $1.5 billion cut. After visiting many first responders around the State, I was pleased to see the reconciliation bill add $1 billion for first responders who will be very important in any prospective emergency situation. I was also pleased to see the one year moratorium on inpatient rehabilitation hospital provisions which require 50 percent of Medicare beneficiaries to meet certain ailment criteria for 2 years. I was opposed to the repeal of the Continued Dumping and Subsidiary Offset Act, CDSOA, program but there was finally a compromise to give the program 2 more years. Of special significance to Pennsylvania was the addition of $998 million for the Milk Income Loss Compensation, MILC, Program which is very important to the financial status of nearly 9,000 dairy farms in the State. In making judgments on legislation like the reconciliation bill, we are really faced with a Hobson's choice. None of the options is desirable. We are constantly choosing among the lesser of the evils. In the overall context of discretionary spending which is involved in the reconciliation bill and in the appropriations bill for Labor, Health and Human Services and Education, there are palpably insufficient funds available for such domestic programs. As chairman of the Subcommittee on Labor, Health and Human Services and Education, it was my responsibility to structure legislation that came within the allocations approved by the Budget Committee and Appropriations Committee. With a 1-percent cut at the outset and another projected one percent across the board cut and the failure to keep up with inflation, the subcommittee sustained a cut in real dollars approaching $7 billion. At the conference on the bill for the Departments of Labor, Health and Human Services, and Education, I said publicly that I would not support the bill unless my vote was indispensable for its passage. If the bill is not passed, we face the alternative of a continuing resolution which will be $3 billion less than the bill, so there is no alternative, as a matter of basic arithmetic, but to support the bill. I have already put my Senate colleagues on notice, including the leadership, that I will not support next year's budget unless there is adequate funding for domestic discretionary programs with special emphasis on Labor, Health and Human Services, and Education. I will also work to correct any inequities or hardships which result from the reconciliation bill.

Mr. SPECTER

Mr. SPECTER. That was my intention, Mr. President.

Mr. SPECTER. I did ask to speak, and it was my intention to have it in morning business.

Mr. SPECTER. Mr. President, I had sought to discuss with the Senator from Colorado some of the provisions of the PATRIOT Act. In view of the limited time, I will make a few comments. It is my hope that we can yet pass the conference report and the PATRIOT Act. When cloture was turned down on Friday, I reached out on Saturday to see if we could find some way to come to some agreements while the House was in town where we could have gotten some modifications on the conference report. That is not possible now; the House is out of session. There was no one in the House to have an extension of time. Senator Frist has said publicly, again, within the hour, that he is not going to agree to an extension of time. The President said he is not going to sign an extension of time. So I think what we are faced with at the moment is that we can either sign the conference report, pass the conference report or the act is going to expire. That is not my wish. I have made every effort to turn, twist, and go sideways and backward and forward to get it worked out. I think where we are now is that it is going to take this conference report or it is going to expire. I talked to the majority leader about having another cloture vote. If there would be 7 more Senators who would join the 53 who voted for cloture, we could get it done. I don't disagree with the Senator from Colorado who says that what has gone on here is, in some respect, unworthy of the Senate. The matter has spiraled out of control to where we are. I came to the Chamber to quote from Benjamin Franklin when he addressed the Constitutional Convention in 1787. We are about to have the 300th anniversary of his birth. America is very proud of Ben Franklin--Philadelphia especially. He came from Boston to Philadelphia. I came from Russell, Kansas, to Philadelphia. That is where the similarities end. We are both carpetbaggers who came to Philadelphia. Franklin had a message for the delegates to the Constitutional Convention, and I am going to read only part of it because I know Senator Byrd is on his way, and I am constrained to stop when he arrives. This is what Benjamin Franklin said to the delegates at the Constitutional Convention, and it applies to the PATRIOT Act. His message is that it is not perfect, it hasn't satisfied everybody, but it is the best we can do, so let's do it. This is what he said: Mr. President, I confess that there are several parts of this Constitution which I do not at present approve. But I am not sure I shall never approve them; for having lived long, I have experienced many instances of being obliged by better information, or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise. It is therefore that the older I grow, the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others. Franklin goes on to say: I doubt too whether any other Convention we can obtain, may be able to make a better Constitution. For when you assemble the number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, their selfish views. From such an assembly can a perfect production be expected? It therefore astonishes me, Sir, to find this system approaching so near to perfection as it does; Then he concludes with this paragraph: On the whole, Sir, I can not help expressing a wish that every member of the Convention who may still have objections to it, would with me, on this occasion doubt a little of his own infallibility, and to make manifest our unanimity, put his name to this instrument. It is not exactly the same. The Senator from Minnesota, who is presiding, is not George Washington, and I am not Benjamin Franklin. But these are very wise words. I would ask if there are any of our colleagues who are listening or any of our staff members of our colleagues who are listening who would be willing to take up the question of changing a vote. They might have to eat a little crow. They might have to lose a little face. Maybe it is worth it for the welfare of the country. There can always be amendments to the act. I am not making any commitments to any changes, but the Judiciary Committee will consider them. This act will not be engraved in granite. There will be an opportunity for changes to be made--again, no commitments--but when we are faced with the alternative of either having the conference report or no act, I think it is pretty clear what the conclusion ought to be. I have talked to some of my colleagues earlier today who don't like where we stand now, who don't want the responsibility for not having an act. So it takes seven. I will be around all day, all day tomorrow. We could vote, as the majority leader has said, on a motion for reconsideration if the body is inclined to do so, if there is some opportunity to adopt the conference report. Mr. President, I ask unanimous consent that the full text of Franklin's statement be printed in the Record. Benjamin Franklin: On the Constitution (1787) Mr. President: I confess that there are several parts of this constitution which I do not at present approve, but I am not sure I shall never approve them; for having lived long, I have experienced many instances of being obliged by better information, or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise. It is therefore that the older I grow, the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others. Most men indeed as well as most sects in Religion, think themselves in possession of all truth, and that wherever others differ from them it is so far error. Steele a Protestant in a Dedication tells the Pope, that the only difference between our Churches in their opinions of the certainty of their doctrines is, the Church of Rome is infallible and the Church of England is never in the wrong. But though many private persons think almost as highly of their own infallibility as of that of their sect, few express it so naturally as a certain French lady, who in a dispute with her sister, said "I don't know how it happens, Sister but I meet with no body but myself, that's always in the right. ``Je ne trouve que moi qui aie toujours raison.'' In these sentiments, Sir, I agree to this Constitution with all its faults, if they are such; because I think a general Government necessary for us, and there is no form of Government but what may be a blessing to the people if well administered, and believe farther that this is likely to be well administered for a course of years, and can only end in Despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic Government, being incapable of any other. (I doubt too whether any other Convention we can obtain, may be able to make a better Constitution. For when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected? It therefore astonishes me, Sir, to find this system approaching so near to perfection as it does;) and I think it will astonish our enemies, who are waiting with confidence to hear that our councils are confounded like those of the Builders of Babel; and that our States are on the point of separation, only to meet hereafter for the purpose of cutting one another's throats. Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure, that it is not the best. The opinions I have had of its errors, I sacrifice to the public good. I have never whispered a syllable of them abroad. Within these walls they were born, and here they shall die. If every one of us in returning to our Constituents were to report the objections he has had to it, and endeavor to gain partisans in support of them, we might prevent its being generally received, and thereby lose all the salutary effects and great advantages resulting naturally in our favor among foreign Nations as well as among ourselves, from our real or apparent unanimity. Much of the strength and efficiency of any Government in procuring and securing happiness to the people, depends, on opinion, on the general opinion of the goodness of the Government, as well as of the wisdom and integrity of its Governors. I hope therefore that for our own sakes as a part of the people, and for the sake of posterity, we shall act heartily and unanimously in recommending this Constitution (if approved by Congress and confirmed by the Conventions) wherever our influence may extend, and turn our future thoughts and endeavors to the means of having it well administered. On the whole, Sir, I can not help expressing a wish that every member of the Convention who may still have objections to it, would with me, on this occasion doubt a little of his own infallibility, and to make manifest our unanimity, put his name to this instrument.

Mr. SPECTER. Mr. President, I ask unanimous consent that I might be permitted to speak for 10 minutes.

Mr. SPECTER. Will the Senator from Colorado yield for a question?

Mr. SPECTER. Mr. President, I see Senator Byrd entering the Chamber, so I yield the floor. Several Senators addressed the Chair.

Mr. SPECTER. Mr. President, I ask unanimous consent to speak until Senator Byrd arrives.

Mr. SPECTER

Mr. SPECTER. Mr. President, I do not know if anybody is going to agree with the proposed change that was made on the conclusive presumption. It may be that it is not negotiable. I do not know. All I have to say is that there are a lot of people with a lot of diverse viewpoints, and I am prepared to sit down with anybody or everybody and see what those viewpoints are. The Senator from Arizona has been very cooperative. He has views. The Senator from Illinois does, the Senator from Idaho does. I am trying to get it worked out. On the floor, I am not prepared to say what concessions would be made, but as long as we are going to be around here, there is no harm in talking. I yield the floor.

Mr. SPECTER. Mr. President, I will pick up on comments made both by the Senator from Arizona and the Senator from Illinois. When the Senator from Illinois says if you have a 1-year extension, nobody will get serious about it until 11 months, 3 weeks, and 6 days, I agree with that. But if you have a 3-month extension, nobody will get serious about it until 2 months, 3 weeks, and 6 days. The Senator from Arizona has made the comment that we are going to be around here for a while. I usually like to agree with Senator Kyl, but I hope he is wrong about Friday, or maybe, long about Thursday, I will hope he was right about Friday. We may be here longer than Friday. But we know we have a cloture vote on Wednesday. So that means we have 2 days, which is twice as long as the Senator from Illinois postulates if we have a 1-year extension. That is twice as long, 2 days, to work on it. I do not know what the House of Representatives is going to do. I know that Chairman Sensenbrenner has been very cooperative, but I don't know what his rejoinder would be. He is talking about an extension, or I have heard a rumor that there is talk in the House about an extension for 4 years. I do not know what the President is going to do. He said he will not sign an extension. I do not know what the majority leader is going to do. He said he is not going to bring it up. But I am ready, willing, and able to sit down with the Senator from Idaho, who is in the Chamber. I cosponsored his so-called SAFE Act. I am trying to work it out. We passed a good bill out of the Senate. Everybody agrees with that because it was unanimous. We made certain changes because we have a bicameral system. I am ready to sit down at 2:10, 2 minutes from now, or right now, and see what people have in mind. The distinguished ranking member at one time said that if we had a modification on the conclusive presumption about which he feels very strongly--it was the subject of a lot of floor debate--so that we did not have a bar that on representation by certain ranking officials, the national security interests or foreign diplomacy issues were conclusively presumed, there couldn't be disclosure, if there could be modification of that standard, I think we might work that out. That is a big point. It would be great for the country if it were to be seen that Republicans and Democrats get together on something, practically anything. I yield to the Senator from Idaho.

Mr. SPECTER

Mr. SPECTER. Mr. President, this year marked the 350th anniversary of Jewish life in America. The occasion has been commemorated with festivities and celebrations across the entire country. As this special year draws to a close, I am submitting a resolution urging the President to establish permanent recognition of the contributions the Jewish culture has made to life in America by annually issuing a proclamation for the observance of an American Jewish History Month. Each year, we remember the achievements and contributions made by African-Americans and women to our Nation's development by designating February as African American History Month and March as Women's History Month. Similarly, Jewish American History Month would celebrate the legacy of the American Jewish experience and observe the many contributions Jewish-Americans have made in the areas of medicine, the arts, science, and technology. American society is comprised of many cultures. Americans are proud of our history of acceptance and understanding. By establishing a Jewish American History Month, we will present an additional opportunity to raise our Nation's cultural awareness and celebrate our diversity. An identical resolution was introduced in the House by Congresswoman Wasserman Schultz, where it was cosponsored by 250 Members and passed unanimously. I hope that the Senate will join our colleagues in the House by agreeing to this resolution, urging the President to annually issue a proclamation for the observance of an American Jewish History Month.

Mr. SPECTER

Mr. SPECTER. I yield the floor.

Mr. SPECTER. Mr. President, we are approaching a vote to invoke cloture on the PATRIOT Act which will require 60 Senators to cut off debate so that we can move ahead to a vote up or down on the act. The act, as is well known, is set to expire on December 31, 2005. When the Judiciary Committee, which I chair, approached the reauthorization of the PATRIOT Act, we tackled it early in the year, and there was a committee bill, which I sponsored, which had remarkable success getting a unanimous vote in the committee, which has Senators from both ends of the political spectrum. It then came to the floor in a manner perhaps unprecedented: It went through by unanimous consent. There was no debate. Not a single Senator objected. It was heralded as uniquely well balanced, from the considerations of providing adequate tools for law enforcement to continue the fight against terrorism, which is vital for our national safety, and balanced to protect civil liberties. Under our system of government, the Senate does not have the last word. I only wish that were so. We have a bicameral system. Then the legislation has to receive the signature of the President. We then went into negotiations with the House of Representatives. I again thank and commend Chairman Sensenbrenner, who is the chairman of the Judiciary Committee in the House of Representatives, for working through some very difficult proceedings to come to a conclusion that a conference report could be signed and filed and voted upon by both Houses. The House of Representatives has supported the conference report with a 77-vote majority--very substantial. Now we have it in the Senate. The conference report was not signed by Senators when originally presented on November 18, 2005. I declined to sign it because I wanted to work through and try to get the joinder of Democrats. It has been my experience that the close relationship which Senator Leahy and I have established, working on the Judiciary Committee on a bipartisan basis, has yielded significant positive results for the committee, for the Senate, for the Congress, and for the country. We have been able to work through major legislation this year, passing class action reform, passing bankruptcy reform, voting out and confirming the Attorney General very promptly, working through data privacy--a very tough legislative bill voted out of committee; voting out of committee asbestos reform. People said that could not be done. It is going to be the first item on the agenda next year. It was apparent to me that we needed to have a bipartisan approach. As one Senator said on the floor yesterday in announcing that the Senator was going to vote against cloture--he had been a cosponsor of the bill, but in the absence of this bipartisan support there was too much public confusion. The public cannot understand all of the intricacies of the PATRIOT Act, and the shorthand signal is, when Democrats and Republicans agree, there is a modicum of confidence. Regrettably, we could not get it on this bill. When the debate started earlier this week, I invited all Members to come to the floor to state what their concerns were. I called many Members to reach out to those I knew could use some elaboration and also discussion for my benefit, and then from the floor repeatedly urged my colleagues to come to the floor, raise their concerns, let us have a discussion. Perhaps we can satisfy their concerns. If not, we can describe the bill and explain it so the people and the Senators will understand it. I do not think we have been successful in conveying to the public at large, and perhaps not even to the Senators, what this bill really provides. In this morning's paper, one of the most prominent newspapers in the United States, they described the bill this way: . . . the bill gives the government far too much power to issue ``national security letters,'' demanding private financial, medical and library records, without the permission or oversight of a judge. The writer of this editorial does not understand the basic tenets of the bill. The writer of this editorial is mixing up section 215, which provides for obtaining records--library records, medical records--with national security letters. The bill is explicit in giving judicial review. At the present time, an agent can go out and, unilaterally, on the agent's own authority, get library records or medical records. One of the principal safeguards in the PATRIOT Act, as passed by the Senate and as maintained by the conference report, has been to interpose the magistrate, the judge, in between the policeman and the citizen, to see to it that law enforcement does not overstep its bounds; that law enforcement could get access on a showing of reason to do so, but there is judicial supervision there. One of the other most prominent newspapers in the country published a story about 30,000 national security letters being issued, which is false. I cannot tell you what the facts are because it is classified. I have tried to get the Department of Justice to come forward and say what the facts are. But repeatedly on the floor of the Senate we heard this quotation: 30,000 national security letters--which is absolutely false. I beg my colleagues not to base their votes on what they read in the newspapers but to get a briefing, find out what the facts are. Senators can find that out in a classified briefing, but do not rely upon the assertions in the newspapers or the assertion in today's editorial, which is just wrong as it describes what the act is. On the floor of the Senate yesterday there were references to hometown newspapers saying hang tough. Newspapers don't vote. Senators vote. Jefferson made one of history's great statements in saying if he had to choose between government without newspapers or newspapers without government, he would choose newspapers without government. We do not have to make that choice. We have both newspapers and government. And render under Caesar--the appropriate line. And let us look to the newspapers, let us consider what they have to say, but when they are wrong, let's not act on wrong information. Let's not act on wrong information. It is up to Senators to hang tough. We don't have to take instructions from the newspapers, as we heard yesterday, urging their United States Senator to hang tough. They don't vote. We vote. A big, tough problem here has been to acquaint people with what this bill does provide. I am confident, if that has occurred sufficiently, that this bill will be passed. I have been on the Judiciary Committee during my entire tenure in the Senate and have demonstrated a strong record to protect civil liberties on legislation which has come through the committee to the floor and in the confirmation process. Nobody has a stronger record in this body than I do. I will take second place to no one. There are many equals here. Many in this body, I would say all in this body, are concerned about civil liberties. But there is no mathematical equation where it can be established, as to the balance between law enforcement and the balance as to civil liberties. If you take a look at the specifics of this legislation, that balance has been achieved. It may not be as good a balance as the Specter-Leahy bill, which passed the Senate unanimously and without dissenting voice here, but it has balance. I have already commented about section 215. There is judicial supervision. And, on national security letters, they were not created with the PATRIOT Act, but we took the occasion of the PATRIOT Act to put in safeguards on national security letters, which are in existence. If the PATRIOT Act goes out of existence, you will not have section 215 to get certain records by law enforcement, but the national security letters are still there. But we took this occasion to provide for judicial review. The recipient may consult a lawyer, who moves to quash the national security letter if it is unreasonable. It may not be everything that everybody wants, but in legislation and the art of the possible, you don't get everything that everybody wants. Then you have the delayed notice warrants. A delayed notice warrant means that the judge has examined the situation and has given special permission that the law enforcement officials do not have to notify the target when the search and seizure warrant is executed. Ordinarily, if there is a search and seizure warrant, the law enforcement officers go to the premise or an office and it is known to the target, but where there are reasons to keep it secret because the disclosure would impede an investigation, our laws have permitted for decades a delayed notice warrant. Then the concern was, How long should there be before notice is given? The Senate bill had 7 days, the House bill had 180 days, and we compromised on 30 days. The Fourth Circuit Court of Appeals said that presumptively 45 days would be adequate. The delayed notice requirement is illustrative of the vagaries of how you have something in perfection. But when the Senate established a 7- day notice requirement, we knew we were going to meet in a negotiating session, and I thought 30 days was a tremendous achievement for prompt notification. The House came down 150 days, from 180 to 30, and we went up by 23 days. Then there is the provision of the roving wiretaps which has been tightened up, as I explained in greater detail yesterday and earlier this week--twice. There has to be a description of the individual who has been intercepted, and there has to be a showing, to have a roving wiretap, that the person is going to resist the wiretap. Then you have what is perhaps as important as any provision--I wouldn't say the most important, they are all important, but as important as any--sunset. The House wanted a 10-year sunset, the Senate said 4 years is what it ought to be, and the House was insistent on compromising in between at 7 years, and we held fast at 4 years. It had been my expectation with good reason to believe that some Democrats would sign the conference report if it came in at 4 years. It required assistance from the White House, and the President was personally involved in the 4-year decision--not to the satisfaction of the House conferees, but we got that done. If you take a look at the specifics, if you don't get your facts from the newspapers but instead get your facts from the Congressional Record, if you get your facts from reading the statute, I believe a fair conclusion would be that it is balanced. It is nice to be the heroes of the editorial pages. It makes great hometown reading. We have had quite a few comments on the floor of the Senate on the PATRIOT Act and on other acts citing the editorials and how pervasive, albeit subtle, that influence is. I have only been chairman of the committee for less than a year, but I have come to see the vicissitudes of leadership. You don't have the freedom to be the dissenter, to stand up and articulate your own views and to accept nothing short of what Arlen Specter has done or I am going to vote no. I have done that a few times when I have had greater freedom, but if you are the chairman of the committee, you have to carve out consensus. In refusing to sign the conference report on November 18, 2005--to the dissatisfaction of many people--but waiting until December to sign it, that was an effort to gain more negotiations and to try to satisfy more people. My job was to get a consensus, was to work through what is the art of the possible, to get a bill. The six Senators who opposed the bill issued their press releases not before the ink was dry on the conference report but before the ink was finished on the conference report. When I went to the press galleries on December 8, 2005 to announce the conference report, before I got there the dissenters had already issued their press releases. They weren't waiting to see what the conference report had to say. They did not issue their objections before the ink was dry; they issued their objections before the ink was finished. And you can do that if you are a dissenter and if you are an objecter. But if you are the chairman and you have the obligation to pull the parties together--and when I signed the report on December 6, 2005 I still couldn't get some members of my committee to sign the report. They thought it went too far. The President has taken the position that this conference report goes as far as he is going to go. I am advised that he issued a statement earlier today that he will not sign a 3-month extension. The majority leader said yesterday that he would not bring up a 3-month extension. There may be ways to get it on the floor in any event. You can't amend the conference report. If I am given instructions in my capacity as chairman to go back and negotiate, I will salute and go back and negotiate and try to work through whatever circumstances require. But where the President has said he is not going to sign a 3-month extension, if he means business, and I think he does, then in voting on cloture and in looking to a final vote up or down, this body is going to be faced with the alternative of either accepting the conference report, which is a balanced bill, or, if not, the PATRIOT Act is going to expire, and the responsibilities will be on those of us who vote and take positions. Although we are a considerable distance from 9/11--more than 4 years--terrorism continues to be a problem. This bill gives important tools to law enforcement in a balanced way. This bill has provisions to protect subways, seaports, and airports. It is important that we have a balanced bill, and it is important that we have a bill. There is no mathematical formula, but this bill is a balanced bill. How much time remains of my 30 minutes?

Mr. SPECTER

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

Mr. SPECTER. Mr. President, before the Senator from Arizona sits down, I wish to ask him a question to further elaborate upon a point he has made. The President has said that he is not going to sign an extension of 3 months or, by implication, any extension of time. So if the conference report is not adopted so the President can sign it, there will be no PATRIOT Act in effect after December 31. The Senator from Arizona has talked about the wall. The Senator was on the Intelligence Committee the day he came to the Senate. He was elected in 1994. I chaired the Intelligence Committee of the 104th Congress. He has been on it. He has been on Judiciary. He has been a leader on this measure. As the Senator said, he had trouble signing the conference report. By the way, I thank him for signing the conference report. Without his signature, we could not have filed it. As to the other provisions beside the wall, if the PATRIOT Act lapses, and there is none, what will the effect be on the fight against terrorism?

Mr. SPECTER. Mr. President, let me agree with Senators who have spoken out very sharply in opposition to the disclosures in the press this morning about ``President Bush Lets U.S. Spy on Callers Without Courts.'' That is wrong, clearly and categorically wrong. If you read some of the fine print, there are some indications that there were some level heads within the executive branch. If you get down into the fine print--it takes a lot of reading beyond page 1 and the other headlines--this appears: [I]n mid-2004, concerns about the program expressed by national security officials, government lawyers and a judge prompted the Bush administration to suspend elements of the program and revamp it. Later the article says: Several national security officials say the powers granted the N.S.A. by President Bush go far beyond the expanded counterterrorism powers granted by Congress under the USA PATRIOT Act. . . . There is no doubt that this is inappropriate. The chief judge of the Foreign Intelligence Surveillance Court stepped in and said: Don't provide this court with any information you got this way to get a warrant. Just don't do it. So if you read the fine print, there were some parts of the system which were working. But it is inexcusable to have spying on people in the United States without court surveillance in violation of our law, beyond any question. And I can tell you that this will be a matter for oversight by the Judiciary Committee as soon as we can get to it in the new year--a very high priority item. I might add, by way of addendum, that on a morning when we come to have a vote on the PATRIOT Act, it is a little disconcerting to see these headlines. It is not very good publicity with a broad brush as to what the Government is doing. The editorials are frequently published on the day the Senate is to vote. Somebody suggested that the news story, which had been held back by more than a year, was timed as well. I certainly would not want to suggest that. I yield the floor.

Mr. SPECTER. Mr. President, if they need more time, I am glad to agree with the distinguished ranking member.

Mr. SPECTER. Mr. President, I ask unanimous consent that the mandatory quorum under rule XXII be waived.

Mr. SPECTER. Mr. President, permit me to interject very briefly just to correct some of the misstatements which have been made that crop up again and again. This bill is not understood. This bill is not understood by Senators who are making representations on the floor which are not correct. I don't suggest they are doing it deliberately, but they don't know the bill. The argument has been made that the recipient of a national security letter has to tell the FBI the identity of his lawyer. That is simply not true. The conference report reads: In no circumstance shall a person be required to inform the Director of the FBI or such designee that the person intends to consult an attorney to obtain legal advice or legal assistance. The representation is made here again and again that in section 215, there does not have to be a connection to a terrorism investigation or someone suspected of being a terrorist. The conference report does add a provision to the three criteria for foreign power, but the court has to make a determination on a factual showing that there is a terrorism investigation that does involve foreigners and that records are sought from another person, albeit not identified with one of the three criteria, in order to carry on the investigation. Again and again, the essence of the protection of civil rights traditionally has been that you interpose an impartial magistrate between the policeman and the citizen, and that protection is given under section 215. The argument has been made repeatedly that under the national security letter, there is no review. That is simply not the case. The recipient goes to a lawyer who can challenge the national security letter in court and have it quashed, eliminated, dispensed with, on a showing that it is unreasonable. If you get to the national security issue, then it is different with respect to a bad-faith showing. There is judicial review beforehand on the very broad term of being unreasonable, which is a hallmark of American law in auto accident cases and antitrust cases every time you turn around. The reasonable standard is traditional under our law. I yield to the Senator from Arizona, who has requested 2 minutes, and he can take whatever time he chooses.