Jeff Sessions

Mr. SESSIONS

Mr. SESSIONS. It is my belief that any conference outcome on this issue should not limit the ability of the DOE to make a final selection on the two alternatives. I am hopeful, of course, that the Bellefonte plant would be favorably considered.

Mr. SESSIONS. I agree and thank the Chairman for his cooperation and understanding on this issue. I appreciate your consideration of this issue and my amendment.

Mr. SESSIONS. Mr. President, I further ask unanimous consent that a letter sent to me by the Citizens Against Government Waste (CAGW), along with a June 25th article from the Washington Times on tritium both be printed in the Record.

Mr. SESSIONS. Mr. President, under current law, the Department of Energy has been going forward with a dual track process to decide on the technology selection of tritium. DOE is to choose the best option to produce tritium based on cost and merit. The House-passed Markey/ Graham amendment, eliminates DOE's decision-making authority and would put the national defense at risk by relying on an unproven technology. The Markey/Graham amendment is fiscally irresponsible and would prevent the Secretary from making a merit-based decision. Tritium is a radioactive isotope of hydrogen which is used in all nuclear weapons of the United States. It has a relatively short half life of 12.3 years and must be replaced periodically as long our nation's defense relies on nuclear deterrence. In 1993, Congress required the Secretary of Energy to submit a report to Congress with a schedule to produce tritium to meet our defense needs. Later that year, the Secretary submitted a report indicating that under START II, tritium production would need to resume by 2009. However, since the START II treaty has not been ratified, as is now the case, the DOE has stated tritium production needs to begin by 2005. On December 6th, 1995 the Department of Energy issued a Record of Decision to pursue a dual-track approach to produce tritium. This process was recommended by the President's Nuclear Weapons Council. The first option is to use the services of a reactor to produce tritium. The second option is to design, build and test a particle accelerator at Savannah River to drive tritium producing nuclear reactions. Both options would be required to produce tritium by the 2009 deadline, but only the reactor option could meet the 2005 deadline. The DOE is scheduled to announce its choice for tritium production by the end of 1998. The Department of Energy needs to pursue the dual-track option for the production of tritium. The Markey/Graham amendment prevents the DOE from making their decision, and ties the Secretary of Energy's hands, throwing competition out the window and saddling the American taxpayer with a huge $16.7 billion dollar debt. Mr. President, the House-passed Markey/Graham amendment to the Department of Defense re-authorization bill sole sources the Secretary of Energy's options for tritium production and forces the Secretary to select the least reliable, highest cost option--APT. Even the DOE's Accelerator Production of Tritium program managers suggest the accelerator may not be able to produce enough tritium to fulfill our defense needs according to a June 8th, 1998 DOE letter in response to my technical questions regarding the accelerator program. The CLWR option to produce tritium is a proven technology which allows the US to maintain its nuclear preparedness. It uses safe, reliable technology at no net cost to the DOE. In fact, the reactor option to produce tritium could actually net the Federal Government a $2.4 billion profit over the forty year life of the program. In contrast, the Accelerator needed for APT is estimated to cost $5.4 billion just to complete. There is no mechanism to ever recapture these costs. In addition, an Accelerator, of the size needed to fulfill our defense needs, would require a tremendous amount of electricity to operate. The annual operational costs of the Accelerator are estimated to be between $120 - $180 million per year. Using the latest inflationary factors developed by Office of Management and Budget of 2.2% and the $180 million annual operating cost estimate put forth in the May, 1997 Congressional Budget Office report titled Preserving the Nuclear Stockpile Under a Comprehensive Test Ban, the life-cycle operating costs for the Accelerator Production of Tritium would be a staggering $11.356 billion over forty years. In total, the operations and maintenance costs, coupled with the cost to complete construction of APT could top $16.756 billion. The Commercial Light Water Reactor option to produce tritium will cost only $1.9 billion--an investment which will be paid back and generate additional revenue to the Treasury in excess of $2.4 billion over the forty year life of the reactor. It would provide the government with a free supply of tritium and generate revenue through the generation and sale of electrical power. The APT will require 2,600,000 megawatts-hours of power each year to operate. This is the equivalent of the electricity requirements of a medium size city like Huntsville and Decatur, Alabama. The power required to operate the APT will result in increased emissions of sulfur, carbon, particulate matter and ozone creating gases and serve to work against our efforts to clean the environment. According to data collected by the Edison Electric Institute, even today's cleanest fossil fuel powered electric plants will emit between 4 million and 9 million tons of carbon; 17,000 and 42,000 tons of Sulfur Dioxide (major contributor to acid rain); and between 870 and 7,100 tons of Nitrous Oxide (major ozone contributor) per year just to generate the same amount of power as the emissions free reactor option to produce tritium. Clearly, the reactor option is the preferred choice for the environment. To maintain our country's nuclear preparedness under the only signed and enforceable treaty, START I, the Department of Defense needs a production capacity of at least 3 kilograms of tritium per year by 2005. The cost estimates on the APT provided by the Department of Energy, at my request, suggest the accelerator, if its experimental technology were to work without failure or shutdown, may only be able to produce 1.5 to 2.0 kilograms of tritium per year. This is not enough to maintain our nuclear arsenal. The earliest the APT will be able to produce tritium is 2007 which could cause the Department of Defense to dip into our Tritium Reserve Stockpile to maintain our readiness. The Reactor option can produce tritium using safe, reliable, certified technology by 2003. Mr. President, can we afford to risk our national security on this unproven APT technology for our nuclear arsenal's tritium needs by eliminating a safe and reliable reactor technology so casually? In closing, Mr. President, my amendment will ensure the Secretary of Energy retains the ability to carefully review each of these options and select the one which will best serve the tritium needs of our nation's nuclear arsenal. I urge my colleagues being appointed to the conference committee on the DOD re-authorization bill, to support my amendment, which preserves the integrity of DOE's decision-making process. We can ill afford to decide the fate of our nation's security on the floor of Congress. Let's allow the nation's top experts in this field to make their decision based on the careful considerations of cost and merit regarding both options. Mr. President, I yield the floor.

Mr. SESSIONS

Mr. SESSIONS. Thank you, Mr. President. Mr. President, I had 13 years in the Army Reserve and went through a basic training program. It was a very worthwhile experience for me. I played football. I have been to basic training, and basic training is worse and tougher. Anybody that survives that has my admiration. I have had the opportunity through the years to serve with some outstanding women soldiers, the kind of soldiers that you respect and are capable and have great ability to contribute to the mission of the unit. It is something that I think is a major part of American military life and we should not be changing. I understand there is a lot of talk about separation and use of the word ``segregation'' based on gender. But it seems to me that Senator Brownback's amendment simply says that in basic training these soldiers, men and women, shouldn't be housed together. I think that is a reasonable approach and something that comports with my sense of what makes sense, my sense of what I understand the Senator to be saying, and I think it is the right idea. Some might say it is the responsibility of the NCOs and the officers to maintain moral control over the soldiers. When they are in such a mixed environment, the officers and NCOs can't maintain control over these young people. They are in a circumstance that is a different world; it is a whole different environment they are in. Things that they would have thought to do under other circumstances may not be done under these circumstances. I say we have separate barracks. It seems to me if we are going to separate the 14 percent of the soldiers that are women within existing barracks, it seems to me you are converting whole floors that would otherwise be half used. For example, most of the barracks I was in had 20 people on one floor and 20 on the next. So I suppose a few people would be on the second floor and the bottom floor would be full. That is the way they were traditionally done. I don't see how it would be any cost to have separate housing for women in which women could have the support of their NCOs under those circumstances and men could have separate housing. I think both parties would benefit from that. The commission did a lot of work. We have been talking about a new commission. I point out that we had one. Senator Nancy Kassebaum-Baker and others did a thorough job. They talked to over 1,000 trainees, 500 instructors, 300 first-term service members, and 275 supervisors. I don't know who the chiefs of staff and Secretary of Army is talking to. I don't know, maybe they are talking to too many people in the Pentagon. But those commissioned, the ones in power to make a decision, went out and talked to soldiers, trainees, 1,000, 500 instructors--the drill instructors out there with these men and women on a daily basis, and this commission unanimously reached a conclusion that separate housing would be preferable. They also concluded that separate training would be preferable. As a matter of fact, I tend to agree with that based on my experience. But that is not before the Senate today. That is not what Senator Brownback is calling on us to do today. Senator Brownback is suggesting that what we ought to do is have separate housing, a readily achievable thing, I suggest. I agree with the commission based on my experience and the study I have done, that separate housing will decrease disciplinary problems, it will reduce distractions during the training process, and as the commission found, will be of marginal cost to the Department of Defense. I am pleased to support this amendment. I think it is time that this body raised our concerns. There are many problems that are occurring. Senator Brownback has eloquently discussed those. We hate to talk about the problems that are occurring, but they need to be discussed. I think it is the right thing. I yield back my time to the Senator from Kansas, and I yield the floor.

Mr. SESSIONS

Mr. SESSIONS. Madam President, I am honored to have the opportunity to make some remarks on the occasion of this nomination. First, I want to say how much I respect both of the Senators from Hawaii. I believe that they take very seriously the nomination of a U.S. district judge, and I believe they have sought to fulfill their responsibilities well in that regard. Having been a practitioner in Federal court myself--full-time as a U.S. attorney for 15 years, and another 5 years or so in private practice--I have a deep feeling about the judiciary, what it needs to be, and the standards it ought to uphold. I believe it ought to be a disinterested applicator of the law, regardless of politics, ideology, and those sorts of things. I believe we ought to look for nominees that do that. Both for my respect for the distinguished Senators from Hawaii and my respect for this nominee make it difficult for me to stand here and suggest, as I will, that we ought not to confirm this nominee for the Federal bench. I have no doubt that she is a person of integrity and character. But I want to share some concerns that I have about this nomination, and why I think it ought not be confirmed. Also, let me express my respect for the distinguished chairman of the Senate Judiciary Committee. There is no finer constitutional lawyer in this body than Senator Hatch. He is a man of integrity and ability. He works hard every day in our committee to make sure nominees are given a fair shake, and that the nominations are moved along at a steady pace, as they continue to do. I know that he considered carefully the problems that this nominee had before he agreed to vote in favor of this nominee. I know he respects the opinion of both Senators from Hawaii. I note that the committee voted 12 to 6, with six Senators voting against the nomination. I think that suggests that there was a genuine unease by a considerable number of the committee with regard to this nominee. It is impossible to know for sure what anyone will do on the bench. This nominee may turn out to be a very restrained and rigorous judicial nominee and judge, consistent with some of the great judges in history. But we have to look at the nominees' backgrounds and the positions they have taken over the years to try to analyze how they might perform on the bench. The Senate is given under the Constitution the power to advise and consent with the President. These nominees are lifetime appointees. They will serve throughout their entire life making decisions day after day, week after week, month after month, year after year. And, as Senator Hatch said, they are not accountable to the people. It is really the most anti-democratic aspect of our entire American government, but I support it. I am not in favor of electing Federal judges. I therefore believe it is our responsibility to give careful thought to those to whom we give that position. First, let me note one thing. It does appear that the district of Hawaii is in need of a judge. Their caseload is 700 weighted cases per judge. It is a heavy caseload. We have a judicial circuit in Alabama that has a higher caseload, and it is, indeed, a high caseload. I am sure another judge is needed to do that work. I know all of us are active in various activities. And I think it is appropriate that we be asked about those activities when we are nominated for a position like this. What do we know about this nominee? We know that she was a voluntary member of the American Civil Liberties Union for a number of years--may still be--and was an active member of the board of directors and a fundraiser for the Hawaii ACLU during 1995 and 1996. During that time, the Hawaii ACLU took a number of positions. I am certain that as a board member she did not sign those pleadings, and maybe did not personally conduct in-depth research. In fact, I think she suggested she has not researched each one of these issues. But I think it is appropriate for us to ask about those positions, as we did on the committee. She did not disavow any of them. In 1996, in Hawaii, an ACLU executive or administrator stated, ``The laws that discriminate based on sexual orientation are as reprehensible as laws that at one time protected segregation.'' The point of that discussion was testimony on the recognition of homosexual marriages. And, in fact, the ACLU official was taking the position that Hawaii should take on the question of affirming, ratifying, respecting, and acknowledging homosexual unions. He was suggesting that those who would oppose it would be the same as those who opposed integration. I would have to say that is outside the mainstream of law. As attorney general of Alabama, I had the occasion to have my staff do some research on this. We found no place in the history of America that any State or government agency ever recognized a homosexual union. It is not recognized, to my knowledge, any place in any culture in the world and reflects an odd and historically inaccurate view of the law. But that was the organization's position, of which she was a board member and a fundraiser. In 1995, the ACLU opposed legislation that would have required HIV testing for persons indicted for sexual crimes. I would suggest that there is an extreme anxiousness and justifiable concern about these kinds of activities. When a person is arrested for a sexual crime and there is a victim that may have been infected with HIV, I think it is perfectly appropriate for a judicial authority require as a condition of the suspect's release that person to be tested to see if they have passed on such a horrible disease to the victim. Also, I suggest that we have a large number of people in the ACLU active in opposing all drug testing. That is a very, very important matter of public interest. It is unfounded in constitutional law and at least in most properly applied cases of drug testing. We will have more drug testing in the future, because we are concerned about young people and others who are using drugs. In 1995, the ACLU in Hawaii, of which this individual was a board member and fundraiser, opposed an ordinance that banned overnight sleeping in parks. We have learned in recent months pretty clearly that it is important and necessary for a city and police departments to take control of their streets. We learned in New York that the panhandlers and those who are in the parks can, in fact, undermine public safety. Mayor Guiliani in New York has taken great leadership in that regard, and has substantially driven down the crime rate in New York. It is small matters like this which sometimes turn into much larger matters. This is the kind of frustration that cities and counties and police departments around the country feel when they are challenged about the steps they have to take to preserve public safety. In 1965, the Hawaii ACLU, of which this nominee was a board member and fundraiser, opposed drug testing in the workplace, saying, ``The ACLU opposes random and indiscriminate drug testing in the workplace, not only on privacy grounds but also because such drug testing does not detect current impairment.'' Madam President, one of the most beneficial acts that has been done to fight drugs in America, in my opinion, is drug testing in the workplace. A businessman who cares about his employees, who sets a high standard, who wants to eliminate theft, who wants to reduce accidents, who wants to protect the health of his or her employees sends out a clear message that drug use is not acceptable in their company, and they drug test fairly and objectively. The tests are very reliable today and make the workplace safer by protecting the lives and safety of employees, eliminating and reducing crime and theft by the employees, and avoiding injury to those who come into contact with those employees. Furthermore, they also encourage employees to stay drug free. You are encouraging them by insisting on a high standard. And perhaps that employee when they go home will tell their wife or husband who suggests that they might use drugs, ``No, we shouldn't do it. I am going to be tested at work.'' Drug testing has been a great success. But it has been a long, hard legal fight. In case after case, the ACLU position has been rejected. I must admit, as a person who has been involved in the fight against drugs, that it concerns me that our nominee is a person who was a board member of an organization that voluntarily went out and tried to obstruct workplace drug testing. In 1995, the Hawaii ACLU opposed another common occurrence in America, the very popular minimum sentence in criminal cases. State after State after State has followed the Federal law that says that under certain circumstances, crimes with certain prior convictions will be punished with at least a minimum sentence if convicted. And that process has worked; I believe it has helped us identify repeat offenders, to lock them up for longer periods of time, and I am confident that that is one of the primary reasons we have seen a reduction in crime among adults. We are doing a better job of identifying serious, repeat, violent offenders through these ``three strikes you're out'' laws and mandatory sentencing laws, and it is no small concern to me as a prosecutor, a Federal and State prosecutor, that our nominee for this position has supported the position of the ACLU that mandatory minimum sentences ought not to be approved. In addition, the Hawaii ACLU has opposed a Federal Stop Turning Out Prisoners Act and the Community Notification of Sex Offenders Act. Those are some of the positions that they have taken during the 1995 period in which this nominee was a member of the board and a fundraiser. Now, when asked at our confirmation hearing if there were any policy positions of the Hawaii ACLU that she disagreed with while on the board of directors, Ms. Mollway answered, ``I cannot think of any.'' Now, I believe that is a sufficient basis for a Senate Member to have a serious concern about this nominee, and that is why at least six members of the Judiciary Committee cast a ``no'' vote. We respect those who have nominated her; we respect her; but we have serious concerns about her nomination to the Federal bench. In addition, in recent years the ACLU has taken other positions that are outside the mainstream of legal and current American thought. They oppose the death penalty. They oppose three-strikes sentencing laws around the country. They oppose school vouchers for sectarian schools. They have opposition to V chips in televisions to screen out violence. They oppose voluntary labeling of music albums as to their content. They support the legality of partial-birth abortion. They support the constitutionality and use of racial preferences and oppose some of the laws that eliminate that. And they support the decriminalization of drugs; that is, the legalization of drugs. Such positions are not mainstream thought in this country. That is not mainstream law that is being advocated. They have done some good things over the years. They have taken some positions that were courageous and were proved to be right and furthered our country, but this nominee in the last few years was an active member of an organization that took some of the positions I just mentioned, in court. Now, I have voted for an ACLU member, maybe more than once, to be confirmed, but I want to share some other things that concern me and affect my decision, and I hope other Senators will consider this as they decide what standard they will use when they consider whether to consent to this nomination. This nominee will be a district judge within the Ninth Circuit Court of Appeals that includes Hawaii, California, Oregon, Washington, Idaho, Arizona, Nevada and Alaska. Over the years that circuit has been recognized as the most liberal circuit in America. It has also been recognized as a court that has been out of touch with mainstream American law. In the last term of the U.S. Supreme Court, the Supreme Court reviewed 28 cases that arose from the ninth circuit, and of those 28 cases, they reversed 27 of them. This has been a pattern over quite a number of years. Just last month, the ninth circuit became the first circuit in America to rule that the Prison Litigation Reform Act is unconstitutional. That was passed by this Congress. It was a magnificent act to eliminate this repetition of appeals by prisoners that have clogged courts for years, and I have seen it personally, and so many of them are extraordinarily frivolous. But it was carefully considered by this body. Every other circuit that has addressed this issue has upheld the constitutionality of the Prison Litigation Reform Act, including the 1st circuit, the 4th circuit, the 6th circuit, the 8th circuit, and the 11th circuit. They have upheld it as constitutional, but once again the ninth circuit is out of step with that group. Recently, in the last month or so, the Supreme Court harshly criticized the ninth circuit for granting a habeas corpus petition-- that is, a petition by a prisoner--that had overturned the death sentence of a convicted rapist and murderer. In reversing this conviction, the ninth circuit opinion reversed a conviction that had gone to the California Supreme Court four times, that had gone to the U.S. Supreme Court two times. The defendant had been on death row for well over 10 years and there was little dispute about his guilt or innocence. And so the Supreme Court really was frustrated by this. This was a midnight stay of execution, within 24 or 48 hours of the carrying out of this death penalty case that had been on death row for years and was reversed by them. Some would say, as Ms. Mollway did, I will follow the laws. Sometimes we have to wonder what the law is in the ninth circuit. We know that they have been extraordinarily sensitive to death penalty cases beyond, in my opinion, rationality. We know that in many cases the court- appointed attorneys' fees in death cases in California or in the ninth circuit have exceeded $1 million for the court-appointed attorneys to defend those who have been charged, since the appeals go on for years and years. And, as I recall, the amount of money spent on that in the ninth circuit matches all the other circuits in America in expense. So we have a problem with that, and we need judges who know what the law is, who make every effort to guarantee that the innocent are found innocent, their convictions reversed if need be, and are given a fair trial. That is absolutely guaranteed by our Constitution and should never be denied. But, Madam President, when you have these kinds of appeals, it makes a mockery of the law, it undermines the public respect for the law, it places the courts in disrespect, and I think this circuit is rightly criticized for that. Recently, the New York Times referred to the ninth circuit as ``the country's most liberal circuit'' and noted that it was viewed by a majority on the Supreme Court as ``a rogue circuit.'' I would say that is a serious matter. I believe, based on this nominee's background, her positions on issue after issue, her activities with the ACLU in Hawaii, that we have indications that instead of being a part of a renaissance in the ninth circuit, to improve the ninth circuit and bring it back into the mainstream of American law, that she would, in fact, be more of the same: the same liberal, activist, anti-law-enforcement mentality that has gotten this circuit out of whack with the rest of the Nation. District judges are not circuit judges; I don't mean to suggest that they are; but they are part of the circuit. It was a district judge recently who ruled the California Proposition 209, the civil rights initiative that would eliminate racial preferences, violated the Constitution of the United States. Fortunately, a panel of even the ninth circuit unanimously agreed that was not correct and the court found there is no doubt that Proposition 209 was constitutional. And the Supreme Court refused to reverse that--in effect, affirmed that decision. So I would just say to my distinguished friends from Hawaii, we do need to be careful about what is happening on our benches. We do have, in certain parts of this country, courts that are going beyond the traditional role of judges, going beyond the traditional role of courts. It is breeding a disrespect, it is undermining law enforcement, it is delaying the carrying out of justly imposed sentences, and we need to make sure that we do something about that. I, for one, have stated publicly for some time now that I feel a special obligation and a special concern to look at the nominees for the ninth circuit, to make sure that those nominees are going to be part of a solution to this problem rather than part of the problem. Based on my analysis and my sincere belief about it, I have concluded that I should vote ``no,'' and I will urge my fellow Senators also to vote no. This nominee is a person of quality and intellect, but I believe she is not the right nominee at this time for this position. Madam President, I yield the floor.

Mr. SESSIONS

Mr. SESSIONS. I understand that, but the point clearly is this is a cap of $4,000 per hour. It is not a guarantee of $4,000 per hour. I preferred a cap of $1,000 per hour. The Senator from North Dakota opposed that. So we raised the figure now. I don't see how anybody can complain about this cap. As to this arbitration agreement, it either does one of two things: It either violates the contracts and, therefore, the legislation written by the Senator from North Dakota has, in fact, undertaken to override the fee written agreement between the attorneys general and their plaintiff lawyers; or it does not. I am afraid, however, that it doesn't do what the Senator from North Dakota suggests, because the way I read it, the only complaint that can be made is when the attorney general disagrees with the amount of the fee with the lawyer he hired. The exact language is: With respect to any dispute that may arise between them regarding the fee agreement, the matter shall be submitted to arbitration. So, I am not sure that this arbitration agreement has any impact whatever on attorneys' fees. The only thing that would happen is some judges may find it unconscionable and just refuse to enforce it. That is obvious to us, that many of these agreements are unconscionable and ought not to be enforced. With regard to the Florida fee where the judge held it to be unconscionable, those lawyers have worked a pretty good while on that case. They have done a pretty good amount of work. The lawyers in Mississippi and Texas have put in a lot of work. The lawyers in Minnesota have put in a lot of work. But there are quite a number of States where the attorneys have done almost no work and they expect to receive a billion dollars. A lawyer, Mr. Angelos, who I believe owns the Baltimore Orioles, had a 25 percent agreement with the State of Maryland. After the case collapsed and they agreed to pay the money--and I don't know how long after he filed the lawsuit, but he certainly wasn't one of the early hard workers on the litigation--he agreed to cut his fee in half to 12.5 percent. That was real generous of him. As I read that in the newspapers, that was a billion dollars. That 12.5 percent was over a billion dollars. And he has done almost nothing. These are fees the likes of which the world has never seen in history. The amount of work that went into obtaining these fees is minuscule in many cases, and as we are going about tobacco legislation, we simply ought not to allow it to happen. I can't say how strongly I believe that is true. No bill should come out of this Congress that does not have a realistic cap on attorneys' fees. To do so would be to dishonor the taxpayers of this country. And to argue, as some have, that it is being paid by the lawyers or the tobacco companies, and therefore not paid by the citizens of the country, is likewise an improper and unacceptable argument. The truth is that any way you look at it, it is money paid by the tobacco companies to settle the lawsuit. It is sort of unwise and unhealthy, in my opinion, for it to be structured this way. Well, the plaintiff lawyers who are representing the State of Alabama, or the State of Mississippi, say: State of Mississippi, you don't have to pay my fee; I will just take my fee over here from the tobacco companies; they will pay it. Well, one of the classic rules of law is that a person who pays your fee is the one you have loyalty to. It creates an impermissible conflict of interest, in my view, between the attorney and his true client--the State--that he is representing. So sometimes they argue that it doesn't count because it was paid by the tobacco companies. That is bad from an ethical point of view, in my opinion. It is also an unjustified argument, because the tobacco company doesn't care whether the money they pay goes to the attorneys' fees or to the State, they just want the lawsuit to end, so they will pay some of it over there and some over there. They just say, ``Tell me where you want me to pay it, State of North Dakota, and I will write the check. Do you want me to write a billion dollars to the attorneys? I will do it. Or I will write you a check for $4 billion. Whatever you say.'' It is just money to settle a lawsuit to them. Certainly that billion dollars could have been put in for health care, tax reductions, and other good things. So that argument, to me, is very unhealthy. In the history of litigation throughout the entire world, we have never seen the kind of enrichment possibilities that exist for attorneys as it exists in this case. With regard to the Florida case, although the trial judge found it unconscionable and he tried his best to eliminate it, his opinion has been withdrawn and is not the final court opinion. The attorney who stands to gain the money still asserts he hopes to get those fees exactly as he was promised. With regard to Texas, a judge has approved a $2.3 billion attorney fee already. I don't know if Governor Bush can succeed in turning that around or not. He is doing all he can to do so, as well he should, because when you consider how much Texas could use $2.3 billion, as any State could, he ought to resist the loss of that revenue for the people of Texas. I think the Senator from Washington has worked hard on this amendment. He has listened to the objections from the other side, and he has sought to draft a piece of legislation that would meet those objections. It pays a little more than I think is necessary, but it would have a significant impact in containing the most unconscionable fees that are likely to occur in this matter. I think he has done a good job with it. It certainly does not mandate $4,000- per-hour fees. A judge has to justify those kinds of fees in a finding. That should mean that young lawyers who may have just done basic background work, or a little research and other types things, won't be paid $4,000; only the very best will. I think it is a good step forward. We will now see who wants to pay these attorneys a legitimate wage for their work. This is a legitimate wage for their work. I expect that we would have bipartisan support for Senator Gorton's amendment. It is a good amendment. It is a generous amendment for the trial lawyers. It rewards them to a degree that is unheard of for their work. I don't know of any fees I have ever heard of at $4,000 per hour. It ought to bring this matter to a conclusion. Again, I don't believe we will have any legislation on tobacco that does not contain a limitation on attorneys' fees, and that certainly represents my opinion. I yield the floor. Mr. CONRAD addressed the Chair.

Mr. SESSIONS. Will the Senator yield?

Mr. SESSIONS. I am glad to answer that. First of all, if we don't cap it at $4,000 an hour, we are likely to end up as in Texas at $92,000 an hour. A judge has approved that fee in Texas. It is going to go through. So certainly this is better than nothing. No. 2, the fee is capped at $4,000 an hour. A judge must consider the skill, the expertise, the commitment, and the value of the contribution of that attorney. Some flunky in the firm isn't going to be paid $4,000 an hour. The lead lawyers, the ones who have demonstrated the greatest skill and leadership and effectiveness, would have the opportunity to reach that high but no higher. So it is certainly a step in the right direction and preferable to nothing, although, as you well know, I was very supportive of the $1,000-per-hour cap.

Mr. SESSIONS. Mr. President, I thank the Senator from Washington for his legislation, which I am pleased to support. I suppose it is round four in this battle. This is the fourth vote we will have had on it. I think the Senator from Washington has attempted in good faith to deal with some of the complaints that have been raised about capping attorneys' fees. Our last vote was at $1,000 an hour. He has come in and said, well, if you establish certain things, and you started early, and you worked hard on this and are one of the people who really deserve credit for this litigation, you could get up to $4,000--that is up to $4,000. So it should not be criticized as a guarantee of $4,000 per hour. I think these judges would decide on that. But he caps it at that amount. For other people who were involved less in the case, it would be capped later. And to my good friend, the Senator from Minnesota, he talked about the Minnesota perspective. I believe Minnesota has been at this some time. They worked a number of hours on this case. They would be paid at least $2,000, and I believe up to perhaps $4,000 per hour for their work, depending on how much the judge were to give them. I think that is a very generous legal fee. As a matter of fact, it goes beyond what I would consider within the mainstream. As a matter of fact, I was just called off the floor a few minutes ago and met a group of young people from my home State. And I asked them if they thought $4,000 an hour--how would they feel about that to pay an attorney for doing legal work. And they did not think I was serious. They thought it was a joke. Talking about $4,000 an hour--that is a lot of money. So I think we have to deal with this. Let me talk briefly about the fact that Senators on the other side have suggested, well, we have an arbitration process. The arbitration process is not between the people who are paying the fees or the defendants in the litigation. The arbitration process is between the plaintiffs, which in this case are the States represented by the attorneys general, and their attorneys, the plaintiffs' lawyers, the attorneys. And what it says is, if they are unable to agree; that is, the attorney general and the lawyer he hired and who agreed to a certain fee, if those two are unable to agree with respect to any dispute that may arise between them regarding the fee agreement-- regarding the fee agreement--then the matter goes to arbitration, then the matter goes to arbitration. Under the fee agreement, they are talking about a 25 percent, 20 percent, 15 percent contingent fee, which would enrich these lawyers to an extraordinary degree. What the Senator from Washington has understood--and I think his legislation recognizes--is that a lot of the attorneys in this litigation have done little or no work. A few of these cases were started early on; a lot of legal work was done; a lot of attorney investment and time and some personal funds were expended on behalf of this litigation. And that is one thing. But as the time went by, other States joined. Many of them joined in a matter of weeks or a matter of months before the settlement by the tobacco companies was offered. Those lawyers now want to walk in and claim 25 percent of what is being paid in, and they worked only a very few hours on this case. Some of these lawyers, it has been estimated, according to a professor from Cardozo Law School, are to receive as much as $92,000 per hour--$92,000 per hour--unless something is done about it. So I think we have to act now. We have a responsibility to act. And I am certain of that.

Mr. SESSIONS. I will. Amendment No. 2705, as modified

Mr. SESSIONS. Mr. President, I would like to thank----

Mr. SESSIONS. I certainly will.

Mr. SESSIONS. I certainly do.

Mr. SESSIONS. With regard to the Florida case, the trial judge found it was unconscionable, as I hope this body finds these fees are unconscionable. But that case has been reviewed at a higher court and that opinion has been withdrawn. So we don't know yet whether the lawyers in Florida will get $2.8 billion that they request or not. In fact, Mr. Montgomery, the lead attorney in the case, said he fully expects to be paid what his fee agreement said. He expects to prevail. He says he has a contract. How can we violate contracts? We violate contracts all the time in this body. We are telling the tobacco companies they can't advertise. Many of them have advertising contracts extended for years. We are changing the whole way of doing business about tobacco. Everything about the tobacco business is being changed by this legislation. It is a comprehensive legislation in which we deal with almost every aspect of it. One of those aspects ought to be how much these fees should count for. I was in Alabama recently to see one of the finest and biggest industrial announcements in the history of the State and one of the largest in the country. Boeing is going to build a rocket plant near Decatur. It is 50 acres under one roof. They told me with great pride that the cost of that building and facility and land and construction would be $450 million. We are talking about attorneys in Florida asking $2.8 billion, five or six times that much, five or six times the cost of one of the largest industrial announcements in America by one of the world's largest corporations. That is the extent of the fees we are talking about in Alabama. The general fund of the noneducation budget is less than $1 billion. These attorneys are asking for more than that. As a matter of fact, a professor from Cardozo Law School estimates that it will make 20 to 25 attorneys in America billionaires. I had my staff check. I believe the Fortune Magazine that rates America's richest people, the world's richest people, listed 60 billionaires in the United States. This litigation, unless we act, could create 20 more billionaires, many of whom have worked less than a year, maybe even only a few months, on the cases with which they are dealing. Now, I am not against a contingent fee. I support that concept. But the attorneys and the attorneys general have come to the Congress and asked us to legislate. The plaintiff attorneys have and the attorneys general have asked us to comprehensively review this entire process and litigate on it. This is an unusual type of case because we have never seen these kind of moneys before and we have never seen these kind of fees before. It is perfectly appropriate for us to contain them. As the Senator from Washington said, we limit fees to $125 an hour in equal access to justice cases. Appointed criminal attorneys in Federal court get paid $75 an hour. I think $2,000, $4,000 an hour is enough. It will make them rich beyond all imagining, just that alone. If they haven't done any work on the case and don't have any hours into the case, they ought not be made any more rich than they are.

Mr. SESSIONS. I yield.

Mr. SESSIONS. Yes.

Mr. SESSIONS. I am aware of that. And I am glad the Senator from Washington made that insightful observation.

Mr. SESSIONS. Certainly.

Mr. SESSIONS. That is correct. But the suggestion that judges are going to somehow guarantee that these exorbitant, as you indicated, unconscionable fees will not occur is not clear from that case because the judge has, in fact, affirmed that case. The Governor, George Bush of Texas, is doing everything he can to resist the payment of those exorbitant fees, but he has not yet prevailed. We don't need to have litigation in every State in America. We ought to comprehensively legislate this legislation with all of the others in this case.

Mr. SESSIONS. Let me respond with a question. Does the Senator from North Dakota believe there should be no cap on the attorneys' fees?

Mr. SESSIONS. Would the Senator recognize that the language that he quoted starts off and says, ``attorneys' fees as approved by the court in such action'' and ``any attorneys' fees shall not exceed the per hour rate of . . .'' Then there is a set of criteria for the judge to consider what the hourly fee should be. I suggest that very few will justify reaching that rate. But whatever, it will be decided by judges on a case-by-case basis. As the Senator suggested, he believes that some cases are different. This allows flexibility. Would the Senator not agree with that?

Mr. SESSIONS

Mr. SESSIONS. Yes, I yield to the Senator from Texas.

Mr. SESSIONS. Well, you have asked an absolutely important question. Those who have been opposed to this legislation have had their integrity questioned and it was suggested that they are bought by tobacco. I have somewhere in this stack a little chart that indicates something about political donations. From the years 1990 to 1994--I want the Senator from Texas to understand this--plaintiffs' lawyers in three States--my State and your State being two of the three--Alabama, California and Texas, spent $17.3 million on political contributions. During that time, the Democratic National Committee, in all 50 States, spent $12.4 million. During that time, the Republican National Committee, in all 50 States, spent $10 million. During that time, big oil in Alabama, California and Texas spent $1.7 million. I know oil is a big industry in Texas. They only spent $1.7 million in Alabama, California and Texas, whereas the trial lawyers spent $17.3 million. The automobile companies in Alabama, California and Texas spent $3,500. That shows you what has happened here. I suggest that we need to rise above special interests. I believe every Member of this body has an obligation to his constituents--to that secretary, to that waitress, to that gas station operator, to that farm equipment dealer--if he takes their money and increases taxes, to not give it away to people who live in mansions who practice golf by driving their golf balls out into the ocean, and that is what we are talking about. There are a number of other things that I can mention, but I see the Senator from Texas is here. I am pleased to yield the floor, Mr. President. Mr. GRAMM addressed the Chair.

Mr. SESSIONS. Mr. President, I thank the Senator from Texas. And he referred to the proposal in the bill dealing with attorneys' fees. I say it is, at best, ambiguous, and it is a testament to the drafters, in my opinion. I am not sure what it means, but it says this: If the attorney involved is unable to agree with the plaintiff--that is, the attorney general--with respect to any dispute that may arise between them regarding the fee agreement, then they can go to arbitration. Now, what does that mean? When you go to arbitration, you have a fee agreement. You are talking about the agreement. Now, some argue, well, this agreement allows the arbitrators to go around the fee agreement. To that I would say, if so, then the legislation already provides for the undermining, going around the agreement. You can't have it both ways. But I submit to you that it is particularly interesting. The arbitration panel is composed of three persons, one chosen by the plaintiff, which is the attorney general; one chosen by the attorney, which is the plaintiff's lawyer; and those two choose the third one. Those are the people who entered into the agreement. What kind of agreement is going to come out of arbitration from that? Let me just say that the $2.5 billion for four lawyers in Texas equals about $500 million each. That is more than we spend each year on diabetes in the United States. That is the kind of money we are talking about--$2.5 billion. Let me make a couple of other points. The arbitration clause, as I pointed out, is ineffective and totally a sham, in my opinion, and will not protect the taxpayers. Of contract rights, they say you can't violate a contract. And this I say would be the principle we are dealing with: A person who signs a contract can keep the U.S. Congress or any other agency from passing a law that conflicts with that contract. It is just that simple. That is the traditional law of America. We do it when we alter the minimum wage. Nobody has been crying that the tobacco companies' contract to run advertising is going to be terminated by these things. When Congress legislates comprehensively, it can legislate on matters involving contracts. It is done every day. And I remind the Members of this body that, under the Equal Access to Justice Act, the top fee is $125; under Criminal Defense Attorneys, they are paid $75 per hour. I think this fee is particularly generous, Mr. President. I will share this with the body. Everybody has been talking about how much this body is influenced by tobacco contributions. I want to say I didn't take any contributions from tobacco, and I do not take tobacco contributions. But this is instructive about the influence and the involvement of trial lawyers from 1990 to 1994. And I submit they have been more heavily involved in recent years. But we have these numbers. Plaintiff lawyers in these States: Alabama, my home State, Senator Gramm's State of Texas, and California, gave $17 million. During that time, the Democratic National Committee in all 50 States gave $12 million; the Republican National Committee in all 50 States gave $10 million; big oil in Alabama, California, and Texas gave $1.8 million. I don't consider that determinative of this issue, but I would just say this. I think some people need to ask themselves some serious questions about public policy. If they care about children, if they care about fairness and justice, if they care whether or not they tax a waitress $1,000 a year for her cigarettes, should we be turning that money over to lawyers who are making $92,000 per hour? I submit it is unconscionable, it is something that should not happen. It is a matter of the greatest importance to this body, and I ask that this amendment be supported.