Jeff Sessions

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I ask unanimous consent that the pending amendment be temporarily set aside to allow Senator Feingold to offer a first-degree amendment. Before the Chair rules, I indicate that it is my expectation to offer a second-degree amendment to the Durbin amendment or work out an agreement for two side-by-side first-degree amendments. While we are working out that agreement, we are prepared to go forward with the discussion on the Feingold amendment, with the understanding that we would then return and debate the Sessions amendment and the Durbin amendment and dispose of those matters first.

Mr. SESSIONS. Mr. President, Senator Feingold has been very alert to the issues of this bill, and he has contributed to this legislation. We have agreed some and disagreed some. We have had a lot of fun discussing the issues, and I know I have learned a good bit from it. Let me say, frankly, where we are on homestead. That has been an intensely debated matter for 8 years. We have reached a compromise on how to handle homestead, and rather than cracking down on the abuses of those people who move to States with unlimited homesteads, we basically have agreed as a Senate that the States get to decide how much should be exempted under the bankruptcy law. In other words, each State gets to decide. States need to begin to think about what their limits are and whether they need to change them. The Senator noted that California has raised its exemption for a home. Others will probably do the same, and some have already done so. It threatens this legislation in a fundamental way if we now go in and say we are going to override the State laws about what the homestead exemption should be. I do not think we should do that. I think it could help kill this bill. I know Senator Feingold is not a fan of it, and I do not think we should do this. With regard to the abuses in the homestead legislation, we did put in language that cracked down on the ability of someone to move to a State that has a more favorable law and place an unlimited amount of equity into a very expensive home and file bankruptcy and be able to keep that equity which they could then reconvert to cash. I think that is a problem. I would like to have seen this go farther, but we didn't make that, we didn't reach that bridge. It was a bridge too far. We failed to do that. It is one item in the bill I think we could have done better with, frankly. I will say this. The exemption, fundamentally, should apply to everyone, 62 above or below, as far as I can see. A young family, I don't know why they would not need the same protections a senior would. Right now they all get the same. It is whatever the State decides. So I would have to rise in objection to the Feingold amendment on the basis that it is contrary to the State prerogatives in this area, the State deference that we have given repeatedly over the years. It is contrary to that. It would be a Federal imposition of a homestead floor and it is contrary to a very fragile agreement we have reached in this body over what the homestead exemption should be. It could, in fact, jeopardize the successful passage of the bill.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I see the Senator from Illinois is here. At this point I ask unanimous consent that immediately following this consent it be in order that I offer a first-degree amendment relating to the matter in the Durbin amendment, provided further that there be 60 minutes for debate equally divided on both amendments concurrently; provided further that at the expiration of that debate the Senate proceed to a vote in relation to the Sessions amendment, to be followed by a vote in relation to the Durbin amendment, with no second-degree amendment in order to either amendment prior to the votes.

Mr. SESSIONS. Mr. President, the Senator from Illinois has raised questions concerning the position of military personnel in bankruptcy. I believe his language is overly broad and I believe the concerns he has do not justify the language of his amendment. I cannot support it. I think I will take a minute to discuss his amendment and then discuss the amendment I will offer, which I believe would be more appropriate under the circumstances. The amendment Senator Durbin has proposed would create a gaping hole in the means test and in the homestead language--it would exempt certain individuals from those provisions and violate certain principles that have been part of this bankruptcy legislation. As I pointed out earlier today, many of the concerns that are raised here are covered by the Servicemembers Civil Relief Act which we passed in 2003 to modify the Soldiers' and Sailors' Civil Relief Act passed in 1940. The combined acts allow military members to suspend or postpone civil financial obligations during their period in the military service. Specifically, this act provides as follows. There is an interest rate cap of 6 percent on all debts incurred before the commencement of active-duty service. In other words, before active duty you have a certain rate of income and if you sign up for a note that carries a 10- percent interest, you can have that interest rate reduced to 6 percent while you are activated, on active duty for the United States of America. There are protections from eviction from your home. It provides for a delay of all civil court proceedings, including bankruptcy and foreclosures of your home; a prohibition on entering default judgments against active-duty personnel members, and the ability to reopen a default judgment if one were to be entered; the ability to terminate property, residential, and automobile leases at will, if you are activated; the continuation of life insurance of at least $250,000 without requiring premiums to be paid; and the tolling of statutes of limitation. In other words, if you are activated and you have a cause of action against someone and you are interrupted in your ability to file that and the time may have otherwise run, the statute of limitations, the time in which you can file a lawsuit, would have run, then you can extend that while you are on active duty. There is temporary relief for mortgage payments for people on active duty, credit rating protection, penalties for landlords and creditors who violate the act involving fines of up to $100,000 and/or imprisonment. These are a lot of broad protections that indicate to me we are at a point where it would not be necessary or wise to frustrate or undermine or go against the guiding principles that are in this bankruptcy bill. We hammered it out. And I have not agreed with all of them that have been set forth. This is not, in my view, a justification for a very significant carve out to the means test and homestead provisions for those on active duty. I would have to oppose this Durbin amendment. I believe, however, that we can be more explicit in the legislation and make sure that soldiers, certain persons with medical conditions, and veterans with low income can qualify under the safe harbor of the bill. I am offering an amendment which clarifies that these individuals who may fall under the special circumstances provisions of the bill are explicitly allowed to be covered under the special circumstances provisions of the bill to give them certain advantages. It would deal primarily with the concern that some would be required to pay back a portion of their debt, and this would deal with that. My amendment includes protections for the following three categories of individuals: those called or ordered to active duty in the Armed Forces, low-income veterans, and individuals with serious medical conditions. These are all situations that we want to make sure the bankruptcy bill's special circumstances clause includes. My amendment does not create a gaping loophole in our legislation. Instead, it makes clear that people capable of paying back their debt should do so, at least in part, but those incapable of paying back their debt due to military service or a serious medical condition may not be required to do so. I hope my colleagues can support this amendment. I will just say with regard to the homestead exemption included in the Durbin amendment that this would go against a lot of consensus we finally reached on homestead. Senator Hatch referred to it earlier. The fact is we have decided as a Senate and after debate three different times in passing this legislation on this floor by a overwhelming vote each time that we were not going to overrule the States' definition of homestead. The State of Florida has a high homestead. In my view, it is too high, but it is in Florida law, and the Senator from Florida may well believe that he needs to defend that law. Many of our Senators say: This is our State's law, and I am not going to vote for a bill with an amendment which overrides my State's law on what the homestead should be. I have a personal belief that it is a necessary provision for us to take, but that has been the consensus, so I have to live with it even though I have been concerned on some of the issues. We have been consistent in not overruling the State definition of homestead. I note that any State legislature could change their homestead any time they want. They can create a separate homestead rule. If they choose for the military, they could raise it or lower it, they can cap it or put a floor on it--whatever they choose. We have decided, as this bill has been through the Congress several times now, to defer to the States on that issue. I believe it would be inappropriate for us to now carve out this exemption to it. I yield the floor and reserve the remainder of the time.

Mr. SESSIONS. Mr. President, I just want to say how strongly I value the contribution of our men and women in uniform. When I was in the Army Reserve I had the opportunity and the honor to call employers of service men and women whom we believed may have been discriminated against because they were fulfilling a military obligation. When I was a U.S. attorney, I filed a lawsuit against a business that terminated someone I believed, and the jury agreed, had been terminated at least in part because of them being a member of the Guard and Reserve. We need to make sure our military men and women are protected and that they cannot be taken advantage of. I was in Iraq in January, and I met with soldiers there. One told me about his house. He was not able to keep up the payments. I asked him if he knew about the Soldiers and Sailors Relief Act, and he said yes, that was protecting him. Under that act his house could not be foreclosed on. And JAG officers, back there, helped him deal with that. But he was sharing with me one of his frustrations. He also told me he planned to re-enlist. But I must react adversely to my colleague's statement that the amendment I offer, which expands protections and guarantees certain protections for military personnel over the present language in the statute, presumes military people who file bankruptcy to be abusers. Now, that is not so. Look. This is the deal. Let's be real frank about it. What he is raising fundamentally is simply whether a person ought to be handled under chapter 13 or under chapter 7. If a military person's income falls below that of the median income in America, he can file chapter 7 and wipe out every debt he has--zilch, zero, walk away free--just like any other American can. And that has not been changed. And as Senator Hatch has indicated, probably close to 90 percent of American individuals who file for bankruptcy relief will be falling in that category.

Mr. SESSIONS. All right.

Mr. SESSIONS. Well, look, this is the deal. My amendment does not presume abuse. The bill already does that if you file for Chapter 7 and you have above median income. My amendment only adds language to give examples of what a ``special circumstance'' could be. This is what we are saying here. The way this statute is written, what it says is if you make above median income in America and you can pay back a portion of your debts, you should not be allowed to go under chapter 7 and wipe them all out. I don't think most military people want to be treated differently from that. If they have come back from active duty and are making $200,000 a year or $75,000 or $100,000 and they have a small amount of debt that they can pay back--it may be substantial--but an amount they can pay back, they will be able to go under chapter 13 and during that period of time the court would decide how much of the debt they should pay back based on their income. And if they have extraordinary circumstances, special circumstances as a result of their military duty, the court can exempt them from going into chapter 13, if it feels that is appropriate. But fundamentally, this bill says if you are making a higher income and you can pay back part of it, why should you not? Not all of it. It is over 5 years. And the way they do it, the money goes to the court. Certain debts on a percentage basis are paid. And at the end of a maximum of 5 years you are wiped out. They don't make you pay for any more than 5 years. So you pay back a portion of what you owe over a period of 5 years. This is not abusing people. These are people who have incurred debts, and they can pay some of it back. And they pay it. Most people under this legislation will fall in the other category as exists today, and they will wipe out all of their debts. So this is not abusive legislation. That is important to state. It also specifically protects veterans who are defined by statute today as low-income veterans. They would be covered by this. There are people with medical expenses. That was defined explicitly as a special circumstance, and active-duty personnel. As one businessman and fellow Senator indicated, we also have to be careful that if we provide too many special protections for service personnel, we could actually drive up their interest rates when they go out to borrow money because a lender may feel they are a greater risk than otherwise would be the case. I believe we need to give our servicemen special protections. The Servicemember Civil Relief Act does that. It provides that you cannot foreclose your home while you are on active duty. It provides that your interest rate is reduced if you incurred debts before you go on active duty. You can't exceed 6 percent. They can't take a default judgment against you while you are away. Your statute of limitation is tolled so you can file any action you have that might otherwise be fileable while you are away. You can come back and still have time to do it. I think we ought to continue to look at it. If there are additional things such as loans and other matters that are important for protection of our military, we need to look at it. But credit card, bank interest rates, those matters are not to be dealt with on a bankruptcy court reform bill. Those pieces of legislation are more appropriately and properly under the jurisdiction of the Banking Committee. That is where they need to be decided and debated.

Mr. SESSIONS. Mr. President, I send an amendment to the desk.

Mr. SESSIONS. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. SESSIONS. Mr. President, how much time remains?

Mr. SESSIONS. I thank the Chair. I do not believe our service men and women should be insulted or are being insulted by the amendment I offered to ensure that they have certain special categories of protection under this act. I think they will welcome the amendment. I do not believe, however, that we need to change the overall idea and concept of the legislation, that homestead should be decided by the States and not by this Federal legislation. And if a serviceman is unable to pay his debts, he will be able to file bankruptcy against those. He will be able to wipe out all those debts. If he is able to pay back a portion, like any other citizen, he would be required to pay back that portion under this legislation. I think that is fair. We need to be careful that they are not in any way adversely impacted by being overseas defending the interests of this country. I do not believe they are under this legislation. I reserve the remainder of my time.

Mr. SESSIONS. That is acceptable to me.

Mr. SESSIONS. Mr. President, I note that with regard to, I believe the new name for it is the Servicemembers Civil Relief Act, which is the updated Soldiers and Sailors Relief Act, is a good piece of legislation. It provides tremendous protection for our men and women who have been called to active duty and sent around the world to defend our interest. It is very important legislation. We updated it not too long ago, in 2003. Maybe it needs to be updated again. A bill structuring the rules of procedure for a bankruptcy in America is not the place to enter into debate about the refined procedures that might be necessary to give greater protection than we give today to our service men and women. I suggest very strongly that to those who disagree there are enough protections, let's consider that. Let's look at that and see if we can do a better job of providing relief. The danger we get into is this: If we start amending what homestead is and having a Federal law dominate state homestead laws, which has not been done in our history, is not the current law, and we have rejected time and again in many different ways, I think we jeopardize the bipartisan consensus we had that led to a vote that passed this legislation last time without the Sessions amendment, which I think provides additional benefits for servicemen. We passed it 83 to 15. I think one time it passed with 97 to 1 votes; another time 78 votes. This is legislation that has had four markups in the Judiciary Committee. We debated it there. We have had long debates on the floor. As a matter of fact, as I recall, we spent 2 weeks on it every time it has been before the Senate, and it is projected we might go 2 weeks again on this legislation. I know my friend from Illinois is concerned about soldiers. I also know he does not support the bill, or at least has not been a supporter of it. I expect it would not hurt his feelings if this amendment, which would upset the agreements we reached on homestead, led to the defeat of the bill. It would not hurt him at all. We had a Schumer amendment last time on a very discrete issue, a very controversial issue that ended up blocking final passage of the bill. We do not need to do that this time. I believe there are strong protections for our service men and women. I do not think, as a matter of principle, that a serviceman should be exempt from the means test. The means test is not harsh. It does not mean ``mean;'' it means ``means,'' income, how much is your income, and if your income is above the median income in America and you can pay back some of those debts, I think anybody ought to do that, if they can. That is the principle of the bill. We proceed at some risk when we start carving out exceptions. Senator Feingold wants to change the homestead exemption for those over 62. I see the Chair, a distinguished new Senator with a young family. There are a lot of young people out here who bought a house. If we change the homestead law, why just do it for seniors? Why not for everybody? Maybe a family with two or three kids needs protection more than somebody who is 62. I don't know. I am saying, we have dealt with those issues. We have decided we would allow the States to set the homestead limit. That was a good decision, a defensible decision. That is one as a Senate, each time it has come forward, that we have reached that agreement, and I believe we ought to stay with it. I do not think it reflects any diminishment or lack of respect for the men and women in uniform. I respect them. I care about them. We have done many things for them and I want to do more. I was proud to sponsor the legislation that increased the death benefits from $12,000 to $100,000 and increased the servicemen group life from $250,000 to $400,000. The President has submitted that as part of the supplemental. I hope we get that done. We need to do a lot of things for our military, but altering the bankruptcy bill under the guise of helping our military in a way that could actually jeopardize a bipartisan consensus would be the wrong approach. I am concerned about it. For that reason I have to object to the Durbin amendment and suggest the amendment I have offered will do the things he wants to see done or needs to be done without jeopardizing our consensus. I yield the floor and reserve the remainder of my time.

Mr. SESSIONS. In my litigation experience, the plaintiff gets the final word. So the Senator should use his time and I will finish. I may yield back some of that time.

Mr. SESSIONS. I do not have any objection.

Mr. SESSIONS. Mr. President, I will make a few general points. This is not a harsh bill. People who make below median income can use the same bankruptcy procedures they always have. Spouses and children are going to have a tremendously better position in this bankruptcy bill vis-a-vis their alimony and child support payments than we have ever given them before. There are a lot of good things in this bill. I reject the suggestion that this is a bill written by credit card companies to meet their special interests. What we have is a bankruptcy court system that is not working well. It is being abused in a lot of different ways. I do not know how we came up with the idea to use the language--and the Senator is correct, it does say abusing the system. It could just as well as have said people who make above median income will not be guaranteed not to pay back some of their debts because, as a matter of policy, the Congress has decided that if they make above median income and can pay some of their debts back over a period of up to 5 years, if the Court so declares, then they ought to pay some of that back. I do not think that is harsh or mean. And all other debts are being wiped out. People cannot sue you, creditors cannot call on you. Your phones cannot be stopped. People can be fined if they harass you for the collection of those debts. That is not a harsh thing. The way it was written, it uses that word ``abusive,'' that we consider it an abuse if you file to wipe out all of your debts when you have a higher income. It might have been better to have said we just do not think you ought to not pay something back if you make above median income. That is the way lawyers write language and that is the way we stuck with it, but it should not be taken in any personal way. It is just a statement of policy of the Congress about who ought to pay back their debts. There is talk like it is a credit card company's fault that someone takes their card and goes out and runs up $3,000 or more in debts on that card, and it is their fault if someone does not pay it back, that they deserve what they get and they gave away $3,000. Who pays for that? It is the consumers in the long run who pay for that. It has been said that they send credit cards to children. Under American law, if a young person receives a credit card and actually goes out and uses it and it is in his or her name, they do not ever have to pay a dime back. A minor is not bound by such a contract as that. The credit card company would be the total loser in that arrangement. They are bringing all these issues up about credit cards. They bring the issues up about health care and insurance and people who do not have insurance or do have insurance. They raise the question of the military. They raise the question of old people. But I just point out that we have considered all of that. We have considered that for 8 years now in great detail, and we have hammered out a bill that I believe is fair and just and has received 83 votes in this body last time for final passage. I believe we will see another big vote this time. The amendment I have offered is a fair solution to the concern of our military men and women. If it is not, we ought to look at the Soldiers and Sailors Relief Act and see if we can make it stronger if that is the right step. Let us keep the bankruptcy law, the court procedures of the Federal bankruptcy system, consistent and harmonious with the philosophy we started with and have carried on with this bill.

Mr. SESSIONS. Mr. President, I believe the Sessions amendment is before the body. I ask for the yeas and nays.

Mr. SESSIONS. I yield back the remainder of my time.

Mr. SESSIONS. Mr. President, the Senator from Illinois has suggested that I go first on his amendment. I know he would like to do the closing argument. He is very good at that. The Senator from Illinois suggests that we are accusing military persons who file for bankruptcy as abusers if they qualify for the means test. That is an incorrect statement of what we are about with the amendment we just passed and what the bankruptcy bill is about. This legislation provides that if a bankruptcy filer makes above median income--this explains a lot about the bill--then absent special circumstances, a filer can be required to pay back at least a part of the debts they owe, only if they make above median income. It also provides that if their income falls below median income, they can stay in chapter 7 and wipe out all their debts just as they always have. If a debtor's income is above median income and special circumstances apply, they still may be eligible to avoid chapter 13, wipe out all their debts under chapter 7. The amendment I just offered and just passed explicitly states that when one is called to active military duty in the Armed Forces, that can be a special circumstance that could protect them and provide an additional opportunity to not go into chapter 13. An expert testified at the committee last week that about 80 percent of the people who file are below median income and that about 7 percent in addition will qualify under the special circumstances. The amendment we just passed protects our servicemen and guarantees they will be considered under special circumstances. We should vote down this amendment because it also sets a homestead limit in violation of State law and contrary to the philosophy of this bill.

Mr. SESSIONS. I move to reconsider the vote.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, today, with a great sense of honor and respect, I rise to pay tribute to the Tuskegee Airmen, both for their bravery while fighting for our country's freedom in World War II and for their contributions in creating an integrated U.S. Air Force. Like many of the heroes of World War II, these brave men left their families at home to fight overseas for the principles of freedom and democracy. Unlike most of their colleagues, these great airmen also fought an enemy of racism and prejudice at home. Thankfully, on both fronts, they were victorious. I am proud to stand today to recognize this great accomplishment, honor their service, and thank them for their dedication to racial equality in the U.S. armed services. For decades, our military denied African Americans the opportunity to serve in leadership positions in the armed services. Although willing to serve a country that did not yet fully recognize their own civil rights, these men were systematically denied the benefit of skilled training in preparation for war. It was thought that they lacked the qualifications for combat duty or the ability to use sophisticated equipment. In 1941, under pressure from civil rights organizations, the Army Air Force set up a training program in Alabama to experiment with training African Americans as military pilots. The training for this program took place at the Tuskegee Institute in Tuskegee, AL, the famous school founded by Booker T. Washington on July 4, 1881. There was doubt among many in the military that African Americans were up to the task, but the Tuskegee Airmen proved them all wrong. Fighter pilots, navigators, bombardiers, and maintenance staffs were successfully trained to be members of the 332nd Fighter Group. The airmen were under the able command of COL Benjamin Davis, Jr., and the highly motivated group flew successful missions over Sicily, the Mediterranean, and North Africa. By the end of the war, 992 men had graduated from the pilot training programs at Tuskegee, and 450 had seen combat overseas. The Tuskegee Airmen were awarded numerous high honors, including Distinguished Flying Crosses, Legions of Merit, Silver Stars, Purple Hearts, the Croix de Guerre, and the Red Star of Yugoslavia. In all their combat, they never lost a bomber to enemy fighters. A Distinguished Unit Citation was awarded to the 332nd Fighter Group for ``outstanding performance and extraordinary heroism'' in 1945. By the end of the war, the Airmen had overcome segregation and racial prejudice to become one of the most highly respected fighter groups of World War II. We must never forget the spirit and dedication of these great patriots. Today, as our Air Force is playing such an important role in the global war on terrorism, the ideas and principles that the Tuskegee Airmen represent remain of the utmost importance. With this in mind, I stand today in support of S. Con. Res. 11, a resolution that Mr. Shelby and I have submitted to express the sense of Congress that the U.S. Air Force should continue to honor and learn from the great example set by the Tuskegee Airmen. I ask my fellow Senators to support this resolution, and I urge the U.S. Air Force to continue to take note of this important part of its storied history.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I ask unanimous consent that the Committee on Armed Services be authorized to meet during the session of the Senate on March 1, 2005, at 9:30 a.m., in open session to receive testimony from combatant commanders on their military strategy and operational requirements, in review of the defense authorization request for fiscal year 2005.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I thank the chairwoman of the committee, Senator Collins, for the leadership she and the Senator from Connecticut have given to a number of issues and the fact that they both have agreed Judge Chertoff should be confirmed as Secretary of Homeland Security. Judge Chertoff was reported out of committee without opposition. The Homeland Security Secretary has three primary missions: One, to prevent terrorist attacks within the United States--to protect our homeland, to reduce America's vulnerability to terrorism, and to minimize the damage from potential attacks and natural disasters in our country. It takes a special individual to lead this Department. In my view, Judge Chertoff represents one of those special individuals. Judge Chertoff knows Rudy Guiliani, former mayor of New York and himself a former high official in the Department of Justice and U.S. attorney. I remember, when Rudy was leaving as U.S. attorney, someone asked him about his successor and who it should be and what he should be. He simply said this: Well, I hope they appoint somebody who can contribute to the discussion every now and then. Judge Chertoff can contribute to the discussion about homeland security issues. He has an extraordinary record, and he is one of the most able lawyers in America and one of the most committed lawyers in this country to public service. He graduated--I know the Presiding Officer is a Wake Forest man; it is a great law school--but he went to Harvard, graduated from undergraduate school magna cum laude in 1975, and also from Harvard Law School in 1978 the same--magna cum laude. Top of his class at Harvard Law School. He then clerked for a circuit judge on the Second Circuit Court of Appeals. It is always quite an honor for a lawyer graduating from any law school to be accepted to clerk for one of those judges. Not only that, he was one of the very few--a rare few--chosen to clerk for a Justice on the U.S. Supreme Court. He clerked for Justice William Brennan on the U.S. Supreme Court. He comes at this with, certainly, proven academic and intellectual abilities to handle the job. Judge Chertoff has had great experience in areas that provide him an opportunity to learn many of the things necessary to be a successful Secretary of Homeland Security. He started out as an assistant U.S. attorney in the Southern District of New York, which they like to think is ``the'' Southern District of New York. When I was U.S. attorney in the Southern District of Alabama, I always thought we were ``the'' Southern District. They certainly always had the reputation of hiring some of the best lawyers in America. It was very competitive to be selected as an assistant U.S. attorney in the Southern District of New York. He did a great job there. He then moved to New Jersey to become first assistant U.S. attorney. That is a big deal. By the way, when he was in the Southern District of New York, he prosecuted mafia cases, organized crime cases, racketeering cases and major fraud cases. He was clearly involved in some of the most significant cases in that most significant district of Federal law enforcement in the country. He goes to New Jersey as the first assistant U.S. attorney. As such, he was the right arm of the U.S. attorney. In fact, he took on a great deal of the responsibilities in that very large office. There is just one office for the entire State of New Jersey. He did a good job there. Soon he was appointed U.S. attorney--the boss--of that office by President Bush. He served with distinction. At one time, he prosecuted the very famous Mafia Commission case which charged the bosses of all five New York La Cosa Nostra families with operating a pattern of racketeering such as extortion, loan sharking, and murder, one of the biggest cases ever brought against mafia. He prosecuted one of the more important cases, criminal cases, that has been brought in the United States, I suspect in the century; I would say it was at least in the top 50 most important cases in the century. The case was prosecuted under his leadership there. He did a lot of other cases of that kind. He served as counsel to the committee on Whitewater. He handled himself well there. As such, he has learned the responsibilities of public service: to handle yourself carefully and conduct yourself with high standards. He won a good report, from everyone who watched the conduct of his activities on that committee, as being a fair and able attorney--in general, and I think he won great acclaim for that. One of the key characteristics of a Secretary of Homeland Security is that they understand State and local law enforcement and governmental agencies, that they can work with them, that they can get them together and talk with them and communicate with them. To do that, when you take the office, you need to understand those agencies, what they are about, what their responsibilities are, what their daily duties are, and how they operate. Judge Chertoff, first as an assistant U.S. attorney and then as a U.S. attorney, had as his duty to work with State and local agents. Each U.S. attorney is required to form and moderate and lead a law enforcement coordinating committee. He did that in the State of New Jersey. I suspect he knows the sheriffs and the chief law officers throughout that State, and probably in New York, too, on a first-name basis. You have to do that in that position. He understands their difficulties, and he understands the challenges and the responsibility of the Federal Government to work with and to utilize the capacities of State and local law enforcement. Indeed, most of the law enforcement officials in America, by far, are in State and local government, probably 90 percent. We can never be effective against terrorists, people who come here illegally to harm our country, without being able to work with and utilize and support State and local law enforcement. He understands that very clearly. I believe that will be one of his best characteristics that will help him achieve the job of making this entity known as Homeland Security work. I must say, when this new Homeland Security Department was formed, as one who worked with many of the agencies that were brought into it under one new Secretary, I knew that it was going to be a challenge, a very real, difficult challenge. Agencies were brought in that Department, such as Immigration, Customs, and others, to all work together with other agencies, such as the Coast Guard, to try to fight terrorism and defend our homeland. That is a difficult task. Agencies do not work well together. I remember the difficulties it took just to get our Federal agencies to work together when I was a U.S. attorney. I know Mr. Chertoff saw the same thing in his office. Now he will have the responsibility of melding these agencies together and have them work effectively and efficiently for a common goal. It will not be easy. Most Americans probably would be surprised to know they communicate with one another like foreign nations. They sit down and sign memoranda of understanding or a treaty or something on how they are going to handle this or that problem. I exaggerate a little bit in the sense that at the grassroots level, most of the agents, the various agencies, work together for the common good, but there clearly is a bureaucracy problem of all Federal agencies, and it is a real challenge to reform this new Homeland Security Department. Mr. Chertoff, having first been an assistant U.S. attorney and then having been a U.S. attorney and serving as the Chief of the Criminal Division in the U.S. Department of Justice, understands that. He has lived with it. Nobody who has held that position could be naive about the difficulties of these issues. He, I am sure, had to work through them in the past, and he will hit the ground with no misconceptions about the challenge, no misconceptions about the good qualities of Federal law enforcement and other officers throughout our country, but with no misunderstanding about how difficult it is to make these bureaucracies merge. So I believe that is going to be one of his great challenges, but he has the experience and ability to make it to work. I, frankly, am one who is of the opinion that if a person has been in the field actually prosecuting cases, actually working at night with IRS agents and Customs agents and Immigration agents and FBI agents and DEA agents, and all of these law enforcement officers, dealing with their supervisors and bosses, they know something that somebody who has never done that cannot understand. They have a comprehension of the difficulty of our Government to work efficiently and productively. They also, if they are good at it, have proven to be successful at it. That is how you judge success in leadership, such as being a criminal division chief or a U.S. attorney--how well you can get these agencies to work together. So I am excited about that. I have known him for a long period of time. I can say, without hesitation, that when he was selected as U.S. attorney in New Jersey, and I was a U.S. attorney myself at that time, everyone knew that was a promotion on merit. His reputation for excellence and skill and legal ability had been known throughout the Department of Justice for some time. His appointment there was received throughout the entire Department of Justice with great pride and hope for success. And indeed, he had a highly successful record. So I just want to say from my personal experience with him, having served with him, having known him for many years, and having known his reputation among those who worked closely with him, that he has all the gifts and graces that are required to be a great Secretary of Homeland Security. I know they say: Well, he should turn over these documents. First, let me say this: They are not his documents. These are documents of the U.S. Department of Justice, memorandums they have. There is a legitimate concern about Members of this Congress using every confirmation we have to see what they can drag out so they can dig through memoranda and documents that represent private conversations within the executive branch. What would we think in the Senate if the President got mad at us and said: I want to see every document that was sent between you and your legislative assistant on all these issues. We would not like that. We would say: Well, we ought to have some right to talk to our staff and communicate with one another and have private conversations and think through these issues. If we tell our staff that everything they say is going to be made public the next day or they cannot put something in a memorandum because it may be on the front page of a newspaper the next day, maybe that would diminish the natural quality of our communication. In fact, it might inhibit good communication. Back on February 7 of this year, the Department of Justice responded to this request that was sent to Mr. Mueller of the FBI. It requested ``the unredacted version of a classified three-page FBI document, dated May 10, 2004, regarding the interrogation of detainees at Guantanamo Bay.'' The Justice Department's response was this. It was not Judge Chertoff's response. He has been on the Federal bench as a Federal judge, with a lifetime appointment, which he is willing to give up, from the appellate court, a highly prestigious thing in itself, to serve his country to be involved in protecting this country. Indeed, when asked why he was willing to do that, he said: When asked to serve in a way to protect my country, I could not say no. They said this: We have carefully considered your request, but concluded that the unredacted document cannot be released in response to your request because it contains information covered by the Privacy Act, 5 United States Code 552a, as well as deliberative process material. That is not an insignificant matter. Deliberative process material involves efforts by the executive branch to study an issue, to deliberate on it and formulate a position. The decision an agency makes is public, but everything they do in deliberating that should not be produced willy-nilly just because somebody in Congress wants to go on a fishing expedition. It goes on to say: We note, however, that the document is comprised of FBI messages that were not sent by or addressed to Judge Chertoff and it contains no reference to him by name or otherwise. I don't think this is anything unusual and dramatic and unexpected that this document should be rejected. I believe the Department of Justice has considered it carefully and rendered an opinion that is fair and just. I support them on it. I know there are certain times documents need to be produced, but there are reasons why documents should not be produced willy-nilly. The Department has considered this carefully and rendered this opinion. I admire Judge Michael Chertoff. He is a first-rate lawyer. He is a man of incredible experience. As chief of the Criminal Division of the Department of Justice, he had an opportunity to see firsthand the difficulties and challenges of the war against terrorism. He performed admirably in that position, as he has in every other position he has held in our Government. He can make so much more money in private practice. He could take a quiet position and stay as a lifetime- appointed Federal circuit judge. But he turned that down to serve our country. This Nation will benefit from his service. I am so glad the committee voted to refer him out positively. I am confident he will be confirmed. I thank the Chair and yield the floor.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I thank the Chair. I will conclude by saying there are a lot of reasons we ought to support this bill. It has been thought out very carefully. A lot of work has gone into it over a number of years. We are in a position to pass good legislation at this time. I yield the floor.

Mr. SESSIONS. Mr. President, this week's debate is the culmination of more than 6 years of work in the Senate on a very important piece of legislation, reform that is needed in the U.S. legal system--class action reform. I practiced law for most of my adult life and have litigated in a number of different forums. I believe in our legal system. It is critical for America's economic vitality and our liberty to have a good legal system. There is no doubt in my mind that the strength of this American democracy, the power of our economy, and our ability to maintain freedom and progress are directly dependent on our commitment to the rule of law and a superb legal system, and we can make it better. To keep our system strong, we in this Congress have to meet our responsibility to pass laws that improve litigation in America. Our court system must produce effective results that further our national policy, correct wrongs, punish wrongdoers, and generate compensation for those who suffer losses in a fair and objective way. We, therefore, as a Congress must periodically review what is happening in our courts and make adjustments if they are needed. That is what we are here for. This class action fairness bill, S. 5, seeks to make the adjustments we currently need, in my opinion. It will guarantee that the plaintiffs in a class action, the people who have been actually harmed and have a right to be compensated, are the actual beneficiaries of the class action and not just their attorneys and not sometimes the defendants who benefit by being able to get rid of a bunch of potential litigation by settleing the case and paying less to the plaintiffs than the case is really worth. The Class Action Fairness Act will not move ``all class actions'' to Federal Court or ``shut the doors to the courthouse'' as some have claimed--rather it will provide fairness for the class action parties by allowing a class action to be removed from a State court where it has been filed to a Federal court when the aggregate amount in question exceeds $5 million and the home State plaintiffs make up two-thirds or less of the plaintiff class. The Act contains a bill of rights for class action plaintiffs to ensure that coupon settlements or net loss awards receive special scrutiny. We have had some real problems with those. The stories are painful to recite by those of us who believe in a good legal system. Furthermore, the Class Action Fairness Act will provide notice to public officials of proposed settlements--I was an attorney general, and I know that notice is given to the proper official in a State so that public officials can react if the settlement appears to be unfair to some or all of the class members. The Class Action Fairness Act has been through the proper charnels in the Senate. The Act has been through the Judiciary Committee not just once but twice. The bill originally passed out of the Judiciary Committee by a 12 to 7 vote over a year ago in June of 2003. It was a bipartisan vote. Since then, it has gone through two substantive negotiations, each bringing on more Senators to support the bill. Just last week, we again passed a bill out of the Judiciary Committee, this time with an even stronger vote of 13 to 5. Today, we expect that more than 70 Senators will support it. The bill is a responsible, restrained bill that will curb class action abuses and further productive class action litigation. The concept of class actions is a good one. Class actions can be extraordinarily effective tools in helping us deal with legal problems confronting America. Sometimes error or negligence is committed by more than one defendant which harms multiple litigants. In such cases, the number of cases filed can quickly become unmanageable if separate individual lawsuits are required by each person who suffered the harm. One hundred thousand individual lawsuits would not be appropriate when one case could settle the issue for all involved. Anyone looking closely at our legal system today knows that we have a number of problems to address. One of the main problems is how much the system costs the average American. Americans pay these costs primarily through increased insurance premiums. They also pay it in increased costs for our judiciary. The 2004 Tillinghast study on the cost of U.S. tort systems found that the U.S. tort system--a tort is a lawsuit or an act that has wronged or injured someone--cost $246 billion in 2003. That is $845 per person. That is a significant number. It is worthy of repeating. The tort system cost $246 billion at an average cost per American citizen of $845. That is an average of $70 a month out of somebody's livelihood. Now, $246 billion is equivalent to 2 percent of GDP, gross domestic product. That is a stunning number. By 2006, the study estimates that the U.S. tort system will cost over $1,000 per person. Most Americans would be surprised to know that the 2003 version of the Tillinghast study found that the U.S. tort system returned less than 50 cents on the dollar to the people it is designed to help--the plaintiffs--and only 22 cents on the dollar to compensate for actual economic loss. Who, then, would appear to be making the money out of our current tort system? An earlier Tillinghast study reported that the income of litigation attorneys, trial lawyers, in 2001 was $39 billion. That same year Microsoft made only $26 billion, and Coca-Cola, $17 billion. As a Washington Post editorial has noted: No portion of the American civil justice system is more of a mess than the world of class action. There are a number of problems with the class action system currently making up the mess The Washington Post referred to. The number of class actions pending in State courts, many of them nationwide, increased 1,042 percent from 1988 to 1998, while the number pending in Federal courts increased only 338 percent during that same period. State courts are being overwhelmed by class actions. A number of State courts lack the necessary resources to supervise the class or the proposed settlements affected. Many State judges do not have even one law clerk, and most of the class actions involve citizens from a number of different States, requiring the application of multiple State laws. Some times a state court dockets becomes jammed while the judge researches out-of-State law to get up to speed. Some say it is a burden on the Federal courts, but Federal judges have on their docket a fraction of the cases of most State court judges in America. Some cases are complex, but that is the nature of Federal court cases for the most part. They have at least two law clerks. The occupant of the chair, Senator Alexander, clerked for Federal judges. District court judges all have at least two clerks, and appellate Federal judges have three or more. Some of them have their clerical support become on staff lawyers and then they really end up with three clerks. At any rate, they have a greater ability to give the time and attention to a major interstate class action involving over $5 million and maybe thousands of plaintiffs than an average circuit judge in a State court system in America. I do not think that can be disputed. The class action settlement process is problematic because many of the class members have no part in shaping the settlement agreement. In fact, many of the members of the class have no knowledge they have even been involved in a lawsuit or one has been filed on their behalf, leading to an abuse of the settlement process. In this scenario, plaintiffs' attorneys can find themselves in a position where their loyalty is not to these class members. It creates an unhealthy situation. For example, a plaintiffs' lawyer does not know the 1,000 or 10,000 members of his class. He is talking regularly with the defendant's company, and they say: Let us settle this case. The plaintiffs' lawyer says: We would like to settle this case. They say: What will it take? He says: The plaintiffs want $50 million to settle it. They say: Well, that is too much. Look, why do we not give you $10,000 in coupons for all of your victims and we will give you $10 million or $20 million in legal fees? Now, most lawyers handle themselves well, but that plaintiffs lawyer now finds themselves in an ethical dilemma. His oath as a lawyer says that he or she should defend the interests of the client, get the most money for their client, but the defendant is dangling out a personally large fee in exchange for a settlement to end the litigation. We have had that happen, frankly, and we have seen that too often. Too often, the attorneys are the ones who received the big fees, and the named plaintiffs, the victims, have gotten very little. It is appropriate, then, that we in this Congress examine this difficulty in our legal system and tighten it up so we have less of that occur. Many class actions appear to be filed solely for the purpose of forcing a settlement, not the protection of an interest of a class, and that has been referred to in debate frequently as ``judicial blackmail.'' Rather than losing a public relations battle, going through court for several years, the defendants often feel they have to settle these cases even if they are frivolous so they do not risk the cost of litigation and the embarrassment and difficulty of explaining some complex transaction. There are several other problems. One is forum shopping, and another is settlements detrimental for class members. Forum shopping occurs when the attorney sets out to try to find the best place to file the class action lawsuit. You could have a case involving an attorney from New York with California plaintiffs filing a class action lawsuit in Mobile, AL. Where can national class action lawsuits be filed today? Amazingly, the answer is in almost any venue, any court, county, circuit court in America. A plaintiff can search this country all over and select the single most favorable venue in America for filing their lawsuit--that is, if it is a broad-based class action that covers victims in every state and county in America, and some of them do. Some may just cover a region or half the counties in America or involve 10 percent of the States. At any rate, they are able to search within that area for the most favorable venue. I believe that is not healthy. A report issued this year by the American Tort Reform Association about the abuse of this choice named the various counties around the country as ``judicial hellholes.'' The study pointed to the large number of frivolous class actions found in counties it named, citing judicial cultures that ignore basic due process and legal protections and efforts by the county's judges to intimidate proponents of tort reform. By bringing their suits in one of these areas, plaintiffs' attorneys can defeat diversity by naming a single defendant and a single plaintiff who have citizenship in the same State, thus preventing a Federal court from hearing the case and allowing a State court in a single county to bind people all over the country under that one State or county's laws. Let me read what the Constitution says about diversity: The judicial Power of the United States shall extend to all Cases, in law and equity, arising under this Constitution, the Laws of the United States . . . to Controversies which the United States shall be a party;--Controversies between two or more States, between a State and a Citizen of another State;--between Citizens of different States. . . . Our Founding Fathers thought about this issue, and they concluded that, if a person from Alabama wanted to sue a person from Illinois, the person in Illinois might not be comfortable being sued in an Alabama state court. They might think that might not be a favorable forum. There might be ``home cooking'' for the Alabama citizen there. So they said those cases ought to be in Federal court. As history developed, pretty early in our process it was concluded that diversity required complete diversity; that is, if one plaintiff and one of a host of potential defendants was a local defendant, then that could be kept in State court. I am not disputing that. All I am saying is I believe the Founding Fathers would have believed that a lawsuit that is predominantly intrastate in nature, involving the real defendant, should be in Federal court. So what happens is if you sue a drug company and you want to keep it in State court, you sue the lady in small town Mississippi who sells the prescription at her store--she is a local defendant, whereas the person who is going to be paying the judgment is out of State. If the drug company had been sued directly, it would have been in Federal court, but by suing one local State defendant along with the big-money deep-pocket in New York, that is not the case.