Jeff Sessions

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I understand that S. 1009 introduced by Senator Lugar earlier today is at the desk, and I ask for its first reading.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I ask unanimous consent that the resolution and preamble be agreed to en bloc, the motion to reconsider be laid upon the table, and that any statements relating thereto be printed in the Record without intervening action or debate.

Mr. SESSIONS. Mr. President, on behalf of the majority leader, I ask unanimous consent that the Governmental Affairs Committee be discharged from further consideration of S. Res. 130 and that the Senate then proceed to its immediate consideration.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I thank the Senator from Texas. He knows Priscilla Owen. He served on the Texas Supreme Court. He served as the attorney general of Texas. He knows the legislators who passed the laws in Texas. He knows Justice Owen's history and the respect she has in the community. One can sense his feelings of how bizarre it is to have this wonderful woman, who is popular throughout the State, with 84 percent of the vote, unanimously well-qualified rating by the American Bar Association, attacked and have people come to this body and say she is some sort of extremist. It is really a sad day. My colleagues on the other side say: We are only objecting to two nominees. Why would they pick Priscilla Owen to be one of the two? Justice Owen is so marvelous. They say she was turned down last year. That was when we had an interlude in which the Democrats had the majority in the Senate and they had a majority in the Senate Judiciary Committee. That committee, on a straight party-line vote, voted down this wonderful candidate, Priscilla Owen, for the Federal court, on a straight party-line vote. That was not done in the 8 years President Clinton was in office when Republicans had a majority. Republicans never voted down one of his candidates on a straight party-line vote. We ought to think about that. Senator Cornyn is a tremendous addition to the Senate. The Priscilla Owen matter was raised in his race. It was a matter he discussed, and the voters voted for Senator Cornyn to be their Senator, and he was on record as supporting her nomination. Now that he is here and helped give us a majority, we moved her out of the committee. She really was not voted down in committee. She was blocked in committee. They tried to keep her nomination from reaching the floor of the Senate, where it could be voted up or down and succeed, until the majority changed. It is frustrating to me to hear the Democratic Members of this body say: Miguel Estrada can be confirmed or we can move him up for a vote as soon as he turns over all of his records, all the memoranda he wrote while he was at the Department of Justice. The Presiding Officer, the Senator from Minnesota, is a skilled attorney. He knows these issues. When a lawyer works for a client, the records are the client's records; they are not the lawyer's records. A lawyer cannot pass out his memoranda to his client without the client's permission. In this case, Miguel Estrada had a client. His client was the United States of America, and his duty and responsibility was to give his supervisors in the Department of Justice--4 of his 5 years he was in the Department of Justice were during the time President Clinton was President of the United States. So his memoranda went to Clinton appointees and their people. They said just turn them over. This is a big deal. I served almost 15 years in the Department of Justice. It was a great honor for me to hold that position. I think it is the greatest, most honorable law firm in the world. It was great to be there. They are good lawyers. They follow the law. The Department of Justice should never give over their internal memoranda on a fishing expedition like this just to try to buy votes in the Senate to get somebody confirmed. They should stand firm, and the heat needs to be on those who ask for these records to be turned over. It was said that some of those records have been turned over in the past. I remember one Senator waving around the documents saying it had been done before. I got them out of the Record. I determined that it was the Robert Bork nomination. Most Americans who have been around a few years remember the Bork deal. He was the Solicitor General of the United States and was moved up to Attorney General. He fired Elliott Richardson, the midnight massacre, and the Senate had a specific inquiry. When Bork was in the Department of Justice, they wanted to know about the memoranda he had written involving Watergate, which raised questions of ethics and impropriety and misconduct. It is quite a different thing if a Member of this Senate says, or this group of Senators say, we want certain records, and those records are records that may give light on a specific wrongdoing that has been alleged to have occurred; there is some sort of concern over an act of wrongdoing which has occurred, but they did not suggest Miguel Estrada was involved in a single act of wrongdoing. They just said: We want to see every memorandum he wrote to the Department of Justice, memoranda owned by the Department of Justice, part of the Department of Justice's work product, part of their decision-making process. They should not turn it over. These Senators, some of whom are lawyers on the other side, know that, and they ought not to be asking for that. I do not believe they would accept it if Republicans were asking for it in the same circumstance. We have to have a certain amount of collegiality, we have to have a certain degree of fairness and respect for proper procedures, and it is disrespectful of the whole governmental process to insist that the work product of the Department of Justice, in a blanket fishing expedition, needs to be turned over to Senators in exchange for getting an up-or-down vote for a highly qualified nominee. I am not pleased with what is going on. We all remember well when President Bush was elected and the Democrats had a Senate retreat, and one of the things they discussed was what to do about nominations. They had three well-known liberal professors known throughout the country, Laurence Tribe, Marsha Greenberger, and another lawyer lecture them. These liberal professors told Senate Democrats that they ought to change the ground rules, that they do not need to do like we have done for 200 years since America's founding. It is clear to me that as a result of that conference, somewhere along the line a majority of the Democratic Members of this body agreed, and they have changed the ground rules of confirmations in a way that has never been done before. In committee, they voted down two nominees on a straight party line vote. They said we ought to change the burden of proof and put it on the nominee. They made a number of other allegations and changes in the process that they said ought to occur. They asked to strengthen the blue slip policy that gives an objecting home State Senator power to block a nomination. When President Bush was elected, they had a meeting and demanded that they have more power. At the same time, they complain in this body about nominees who did not move because of the traditional exercise of the blue slip. They wanted to have even more power to block nominees of President Bush than existed to block President Clinton's nominees. So it is a frustrating thing. The most dramatic and historical change of the ground rules occurs when this body engages in filibusters. I noticed they said Mr. Paez was held up 1,000 days. Well, Priscilla Owen and several others are at about that number right now. How did the Paez matter come to a vote? In my strong view, Paez should never have been confirmed as a Federal judge based on the record we had. I opposed his nomination. But how was it brought up? How do you deal with a hold? You move for cloture. It is a process. No filibuster was ongoing. It just was not being brought up for a vote. The majority leader of the Republican Party, Trent Lott, moved for cloture. I voted for cloture even though I opposed the Paez nomination. Cloture was voted overwhelmingly. Why? Because we did not believe that filibuster was an appropriate remedy for dissatisfaction over a judge. The Republicans believed that a judge should not be filibustered. It has not been done for a circuit or a district judge since the founding of this country, until our colleagues on the Democratic side have now openly filibustered Priscilla Owen and Miguel Estrada. If they were to say, this is an extremist judge who lacks qualifications, and those sorts of things, maybe we ought to be able to use that power. But that is not the case with these two judges. These two judges were rated by the American Bar Association. The American Bar Association is an institution that on legal and social issues is, I think, consistently to the left of the American people and the Senate. For example, they oppose any laws restricting abortion and they take a number of very liberal positions on social issues. But the American Bar Association is an entity that understands what the legal practice is about. They can go out in the community pretty quickly and determine if someone is irresponsible or an extremist. They will rate them accordingly. Well, the American Bar Association has done in-depth background checks on Miguel Estrada and Priscilla Owen. As I recall, they have one person who does a lot of the work. They talk to all of the judges before whom the lawyer practices. They talk to the opposing counsel, co-counsel. They talk to the leaders of the bar in the community. They talk to just about anyone who would have an opinion on them. They talk to civil rights leaders. They always talk to minority representatives to make sure they have broad-based feedback. Then there are 15 or so of them who meet and evaluate this nominee, and they issue a rating. With regard to Priscilla Owen, a justice on the Texas Supreme Court, elected with 84 percent of the vote last time, they unanimously rated her the highest rating they give: Well qualified. Miguel Estrada, editor of the Harvard Law Review, clerked for the Second Circuit Court of Appeals, clerked for Justice Anthony Kennedy on the Supreme Court of the United States, something very few lawyers ever get to do in their life--it is one of the highest honors one could have--they interviewed all the lawyers and all the people, including, I am sure, people in the Clinton Department of Justice where he worked, and they rated him unanimously well qualified, as both of them should have been. So this talk that they are somehow extremist is just not right. When we see a woman of such good demeanor as Priscilla Owen displayed during her confirmation process--she took all of those questions, many of them based on false premises, with great skill and aplomb, I thought, and handled herself well, as did Miguel Estrada-- this is a very unsatisfactory time in this Senate, when now for the first time in the history of America we have filibusters of circuit judges. This is not about a judge who some lawyers think has an integrity problem. Nobody has suggested that. They are not nominees who people think are somehow unqualified intellectually, or they have lack of experience or lack of ability to do the work. These are the best of America. Many of us have asked, why would they pick these two nominees? It seems one reason we keep coming back to--and it is so bizarre, I hate to repeat it almost--is that both of these nominees are clearly worthy of serious consideration for the Supreme Court of the United States. They are so fine and have such a marvelous breadth of experience and record of accomplishment in their lives that both of them ought to be on any shortlist for the Supreme Court of the United States. So is that why we are having an objection? They are too good, too qualified, too capable, too intelligent? I do not know, but something is awry when the filibuster is used against people of this quality. I feel very strongly about that. I agree with Senator Cornyn, and I am glad he is having hearings about it. I am glad he is inquiring into this because he has the judicial experience, integrity, and capability to maybe help us work our way through this maze. Maybe we can figure out a way to get around this. We certainly know the Constitution of the United States, clearly, in the case of advise and consent, will be by majority vote. It is very difficult to interpret it any other way. Let me say a little bit more about the sterling qualities of Priscilla Owen. She finished at the top of her class at Baylor Law School and aced the Texas bar exam. She made the highest possible score on the Texas bar exam. What better proof of legal ability objectively analyzed than by the tests you take for a bar exam. She passed that with flying colors, with the highest possible score. She was a partner at one of Texas's finest firms, Andrews and Kurth, when she ran for the Supreme Court in 1994. She practiced and litigated for 17 years and was recognized as one of Texas's finest lawyers; not some office clerk who never went to court, but a litigator who was out in the courtrooms in the Federal court and the State court trying cases and developing a reputation of excellence. She is a member of the American Law Institute, the American Adjudicatory Society, the American Bar Association, a Fellow of the American and Houston Bar Foundations. She was reelected to the Supreme Court in 2000, garnering 84 percent of the vote. She spent so little money in her campaign, despite her big win, that when it was over, she had a good bit of money left. She did something I have never heard of a politician doing: She went back and checked her contribution list and sent back everybody the money they gave to her. There is certainly no Senator who has done that. We like to keep our campaign account, thinking we may need it again some time. That was a voluntary action on her part that demonstrates her high character and high standards. She serves as the liaison to the Supreme Court of Texas court and mediation task force and the statewide committees on providing legal services to the poor and pro bono services. This mediation task force, I know, causes grief to some of our aggressive litigators, but mediation is a growing method of settling disputes, short of full- fledged and highly expensive litigation. She has been at the forefront of that. I have not heard anyone complain about that. I ask myself, What is it people would complain about? Is it because she is looking for ways to reduce the costs of protracted litigation? She was part of a committee that successfully encouraged the Texas legislature to enact legislation that has resulted in millions of dollars a year in additional funds for providing legal services to the poor. She does not just sit there in the office and write opinions. She cares about justice. She wants to make sure everyone has a good day in court. She participated in a committee that raised millions of dollars to help the poor have better legal counsel. That is important. This is some extremist we are talking about? She serves as a member of the A.A. White Dispute Resolution Institute. She was instrumental in organizing a group known as Family Law 2000 which seeks to find ways to educate parents about the effect of a dissolution of a marriage, the effect on their children, and to lessen the adversarial nature of legal proceedings when a marriage is dissolved. That is important. A lot of parents get so caught up in the anger at their spouse. They have to realize that children are completely baffled by this. They are watching this fight going on with the parents, both of whom they love, and they want to be together, and it is a painful experience. The legal system and the court system of America needs to do a better job of thinking about the impact of these hostile, aggressive divorce proceedings on children. She took a lead in that. This is an extremist? Among other community activities, she serves on the Board of Texas Hearing and Service Dogs for the blind. She is a member of the St. Barnabas Episcopal Mission in Austin, TX, where she teaches Sunday school and is the head of the altar guild. Is this an extremist Episcopalian? That is a contradiction in terms. She earned her BA from Baylor and graduated cum laude from Baylor, and was a member of the Baylor Law Review. She was honored as the Baylor Young Lawyer of the Year and as a Baylor University outstanding young alumni. That led up to her sterling career and practice, her election to the Supreme Court of Texas, her nomination by the President of the United States, who is from Texas and knows her and knows her record. He nominated her for consideration by this body which led to her eventual rating by the Bar Association of America, unanimously well qualified. I am proud of her in that respect. They complain about these parental notification cases. In Texas, the law of Texas is a modest law. It says before a child can have an abortion, before they can be taken off someplace by some older boyfriend to have an abortion--and too often that is what the cases are--they at least ought to tell one parent. If they choose not to do that, they can go to court. If they have a good reason why they should not tell either parent, the court will allow them not to do so. It is called parental notification law. I think it makes sense. Virtually overwhelmingly, the American people support that; 80 something percent of the people support that. In Texas, you cannot get your ears pierced or a tattoo without parental consent--not just notification. So for Heaven's sake, it should not be considered extreme to require notification prior to an abortion. The Supreme Court of the United States has upheld these laws. Let me give the hard facts on these cases. The way it works in Texas, a child goes to a court and says: I don't want to tell my parents; they might get mad. The judge has a hearing. If the judge disagrees and says: No, you need to tell one of your parents; we believe you can tell your mother, you should tell your mother before you undergo this procedure, if you want to go forward, you can, but you should tell her. Then, if the young person is not happy with that, they can appeal. They take the appeal to the court of appeals in Texas, a three-judge court, and that three-judge court reviews the opinion of the trial judge. If the trial judge said the young person did not have to tell the parents, there is no appeal. It is over. The case will never even get to the court of appeals unless the trial court says no, you must tell your parents. If the court of appeals overrules the trial court, the case ends there. If the appellate judges after reviewing the record of the trial court conclude the trial court was correct and affirms that decision, then the young person can appeal again. In this case it would go to the Texas Supreme Court where Justice Owen sits. By the time it has gotten to the court, a trial judge has ruled notification is appropriate, and a three-judge intermediate appellate court of Texas has ruled it ought to be done. These are the numbers. Justice Owen agreed with the lower court opinion and voted to require parental notification in 10 of the 14 cases. She voted to reverse the lower court and grant the exception outright two times. She voted twice to just flat reverse the lower court and say the young person is entitled to an exception--on 2 of those 14 cases. And on 2 cases she did not believe the lower court had done it correctly, had not heard the case fairly, and sent it back down for further hearings on the facts. In my experience as a litigator who has been involved in trying a lot of cases, that is about the percentage you would expect. You would expect that by the time a case has gone through two levels that the lower courts are probably right most of the time. So I just don't think that is an extreme record at all. I cannot believe they continue to persist in arguing she is somehow a judicial activist. As Senator Cornyn has pointed out, that was a reference to another judge's dissent; not her opinion even. It was unfair to say Judge Gonzales has said she was an activist. It is not so. As a matter of fact, I would add this: They say this lady is an extremist. She is not fit for the Federal court because she has not voted right on these parental notification cases. It is almost humorous to think about it. But she voted with the majority of the Texas Supreme Court in 11 of the 14 cases before that court. The full court voted to require parental notice in 7 cases and to grant the exception outright in 3 cases and to remand 4 cases. These are just excuses, for some reason, that are out there that have been used to block her. They do not withstand rigorous analysis. One more thing. Let's say she made a mistake. I don't know how many hundreds of cases she has heard on the supreme court. But the American Bar Association and the legal community in Texas, they know her. After a while you form an opinion of a judge and a lawyer. You have an opinion as to whether or not they have good judgment, whether they are capable, whether they work hard, whether they have integrity. Even if they make a mistake somewhere along the line in a case, that is not disqualifying. Any judge who ruled on thousands of cases is not going to be mistake free. I would say she has done extraordinarily well. We ought to listen to the opinions of those who know her, like Senator--Judge--Cornyn, her former colleague on the court; like all the major newspapers of Texas; like the American Bar Association; like her colleagues on the bench; and like President Bush, who knew her in Texas. She is qualified to an extraordinary degree and would make a magnificent circuit court judge and should be confirmed. We ought not to be in the midst of a historic filibuster on any nominee, really, but particularly this one. I thank the Chair and yield the floor. I suggest the absence of a quorum.

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

Mr. SESSIONS

Mr. SESSIONS. Mr. President, we are waiting for wrap-up. I would like to make a few brief remarks in support of the provision offered by Senator Warner and Senator Levin and others that deal with the expansion of NATO, and in particular, the rule of consensus in NATO. NATO is now 26 countries. It is a group that has provided a bulwark for freedom and liberty against the totalitarian Communists of the Soviet Union and their footstools they dominated in Eastern Europe. They stood firm for a half century, and we have lived to see the collapse of the wall, collapse of the Soviet Union, and freedom spread across Eastern Europe. It is one of the great events in all of history, maybe the highlight of the 20th century. The NATO alliance has a rule called the consensus rule. It says: In making their joint decisionmaking process dependent on consensus and common consent, the members of the alliance safeguard the role of each country's individual experience and outlook while at the same time availing themselves of the machinery and procedures which allow them jointly to act rapidly and decisively if circumstances require them to do so. That is the rule. We have gone up in numbers. We are going to add more members now. We are probably going to go over 30 members. As a result, we have to ask ourselves what is this unanimous group? What happens if a country goes bad? What if the Communists take back over one of their former footstools they ran over in Eastern Europe? What if a Milosevic takes over a country and rejects the ideals of NATO? What if some radical religious party takes over a country and leads it on the wrong road? What if a Saddam Hussein, a fascist-type government, takes over one of these countries? We are not able to act anymore? We have to sit here and stop all of NATO's legitimate actions? What this amendment would do is ask the NATO alliance to talk openly and honestly about this problem. It does not require anything. What it requires and asks is the NATO ministers meet and discuss this rule and see if they want to keep this rule. It focuses on a couple of questions. One is should you always have to have a unanimous vote? I remember very distinctly in the Armed Services Committee after the Kosovo effort, which was mainly driven by our air power, the commander of the American Air Force who directed our air campaign against Kosovo, answered some questions I asked him. I asked him if the unanimous rule and consent requirement hinder his selection of targets. He said: Yes. I said: Did that hindrance delay the successful outcome of the war? Did it cost more lives of Kosovo citizens and Serbian citizens? And did it endanger American lives? Yes. Why did this happen? The NATO group approved even the targets our Air Force were selecting before they committed their flights over Kosovo. This is not healthy. This is not a good way to run a war. Now we are going to have 30-plus nations, some of which may have ethnic or political or weird ideas, and they may object to targets. They may object to tactics. We had an incredible 11 days to figure out a way to get NATO to vote to support Turkey, in case Saddam Hussein attacked Turkey. Some have said that was a good record. Eventually they did get the agreement, but they had to move outside the political NATO to the military NATO. That means France is not in it. You know France is not even a part of the military NATO compact. So they got out of the political NATO and finally got our people all to agree to defend a NATO member against Saddam Hussein. It took 11 days to do so. I would say to my friends in the NATO alliance, we are so proud of this alliance and what it has achieved. We are proud of the commitment and high ideals that NATO has set for that region and throughout the whole world. But we are a little nervous. We think it is about time to think through this consensus rule. I don't want to stir up anything. I don't want to say that we don't respect any one nation's vote in NATO nor give it great respect. But I do think that a mutual respect to the United States' overwhelming majority of NATO would be to ask questions: Wait a minute. What kind of mechanism could we do that would protect small nations, and that would protect the minority of nations but allow NATO to act legitimately even without an absolute unanimous vote? I think Senator Warner, Senator Levin, Senator Roberts, and others who have offered this are on the right track. I have asked about it for some time. In fact, when the matter came up several years ago to expand NATO, I asked a number of the witnesses from President Bush's administration some tough questions about it. They were forward. I asked about the rule of consensus. They defended it. They said, Well, we think it is going to be OK. Senator Levin, likewise, took the same position. When we had the recent hearing on the further expansion, we dealt with this same issue. I quoted some of Senator Levin's remarks previously. I think this is a good time for us to move forward to bring this to a head. Let us talk about it openly. I don't think a discussion without any requirement to act could upset anybody. Let us talk about it and maybe we can make some progress.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I rise today to remember a selfless American, Dr. Martha Myers. Many know Dr. Myers as one of the two Southern Baptist missionaries recently murdered by extremists in Yemen. She represents the bests in missionary service. She was, by her aid to those in need, a demonstrated friend of the people of Yemen and in the end, she laid down her life for them. Greater love hath no one than this. Her death has touched me deeply as it has touched many worldwide. It has also, unfortunately, heightened our concern for Christian missionaries throughout the world. Dr. Myers was educated in my home State of Alabama where she earned degrees from both Samford University and University of Alabama Medical School. The daughter of the State of Alabama's long time health officer, Dr. Ira Myers, she was educated and trained as an obstetrician. Instead of seeking monetary gain, like a modern day Nehemiah she dedicated the rest of her life in selfless service to the indigent families of Yemen. She spent 24 years as a medical missionary in Yemen ministering by example. Her colleagues have stated that she often slept in her office cubicle to save money to give to poor families in communities surrounding the hospital. I find it particularly telling that it was her choice to be buried on the grounds of the hospital in Yemen. I find this important because it shows a total and complete devotion to the difficult and selfless work she felt called to do. It demonstrated her total commitment without thought of turning back. Former professors and college friends say that her sense of calling to the field of missions was ``crystal clear.'' They also said it was evident to everyone around her that this clear call to serve others empowered and motivated her even as a college freshman in 1963. Dr. Martha Myers' ability to rise above personal interest in service of others goes far beyond what most people can conceive. Dr. Mike Howell, her former biology professor, summarized her life and commitment well in saying ``There aren't many people willing to dedicate their life to people. That is the greatest calling of a Christian.'' While the world has lost a selfless servant, We may hope that the life of Martha Myers will serve as an inspiration for others. It demonstrates that religious faith can be the basis for a life dedicated to others, even if those served have a different religion. Dr. Myers did not limit her patients to Christians. She served all in need, and she never forced her views on anyone. In these days of terrorism and the prospect of war, our world should think deeply about the well lived life of Dr. Martha Myers. In such loving humility can come the seeds of a more peaceful world. Some may say that this senseless murder proves that radicalism rules the day and that such acts can only be dealt with by war. But, perhaps not. Certainly, some radicalized terrorist, someone with a twisted view of their faith, can end a lifetime of work. Still, such evil acts cannot erase the good she has done. And, maybe, just maybe, the thousands of poor, sick, and dying that she treated and comforted will have a different view of the United States, a different view of the West, and a different view of freedom and faith as a result of her life well lived. In that we can all take comfort.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I rise today to introduce legislation which will simplify and update a provision of the tax code that affects the sale of timber. It is both a simplification measure and a fairness measure. I call it the Timber Tax Simplification Act. Under current law, landowners that are occasional sellers of timer are often classified by the Internal Revenue Service as ``dealers.'' As a result, the small landowner is forced to choose, because of the tax code, between two different methods of selling their timber. The first method, ``lump sum sales provides for good business practice but is subjected to a high income tax. The second method ``pay-as-cut'' sales, allows for lower capital gains tax treatment, but often results in an underrealization of the fair value of the contract. Why, one might ask, do these conflicting incentives exist for our Nation's timber growers? Ealier in this century, outright, or ``lump sum,'' sales on a cash in advance, sealed basis, were associated with a ``cut and run'' mentality that did not promote good forest management. ``Pay-as-cut sales,'' however, in which a timber owner is only paid for timber that is harvested, were associated with ``enlighted'' resource management. Consequently, in 1943, Congress, in an effect to provide an incentive for improved forest management, passed legislation that allowed capital gains treatment under 631(b) of the IRS Code for pay-as-cut sales, leaving lump-sum sales to pay the much higher rate of income tax. It is said that President Roosevelt opposed the bill and almost vetoed it. Today, however, Section 631(b) like so many provisions in the IRS Code, is outdated. Forest management practices are much different from what they were in 1943 and lump-sum sales are no longer associated with poor forest management. And while there are occasional special situations where other methods may be more appropriate, most timber owners prefer this method over the ``pay-as-cut'' method. The reasons are simple: title to the timber is transferred upon the closing of the sale and the buyer assumes the risk of any physical loss of timber to fire, insects, disease, storms, etc. Furthermore, the price to be paid for the timber is determined and received at the time of the sale. Unfortunately, in order for timber owners to qualify for the favorable capital gains treatment, they must market their timber on a ``pay-as-cut'' basis under Section 631(b) which requires timber owners to sell their timber with a ``retained economic interest.'' This means that the timber owner, not the buyer, must bear the risk of any physical loss during the timber sale contract period and must be paid only for the timber that is actually harvested. As a result, this type of sale can be subject to fraud and abuse by the timber buyer. Since the buyer pays only for the timber that is removed and scaled, there is an incentive to waste poor quality timber by breaking the tree during the logging process, underscaling the timber, or removing the timber without scaling. But because 631(b) provides for the favorable tax treatment, many timber owners are forced into exposing themselves to unnecessary risk of loss by having to market their timber in this disadvantageous way instead of the more preferable lump-sum method. Like many of the provisions in the tax code, Section 631(b) is outdated and prevents good forestry business management. Timber farmers, who have usually spent decades producing their timber ``crop,'' should be able to receive equal tax treatment regardless of the method used for marketing their timber. In the past, the Joint Committee on Taxation has studied this legislation to consider what impact it might have on the Treasury and found that it would have no real cost--only a ``negligible change'' according to their analysis. The IRS has no business stepping in and dictating the kind of sales contract a landowner must choose. My legislation will provide greater consistency by removing the exclusive ``retained economic interest'' requirement in the IRC Section 631(b). Reform of 631(b) is important to our Nation's non-industrial, private landowners because it will improve the economic viability of their forestry investments and protect the taxpayer from unnecessary exposure to risk of loss. This in turn will benefit the entire forest products industry, the U.S. economy and especially small landowners.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I rise today to introduce legislation which will simplify and update a provision of the tax code that affects the sale of timber. It is both a simplification measure and a fairness measure. I call it the Timber Tax Simplification Act. Under current law, landowners that are occasional sellers of timer are often classified by the Internal Revenue Service as ``dealers.'' As a result, the small landowner is forced to choose, because of the tax code, between two different methods of selling their timber. The first method, ``lump sum sales provides for good business practice but is subjected to a high income tax. The second method ``pay-as-cut'' sales, allows for lower capital gains tax treatment, but often results in an underrealization of the fair value of the contract. Why, one might ask, do these conflicting incentives exist for our Nation's timber growers? Ealier in this century, outright, or ``lump sum,'' sales on a cash in advance, sealed basis, were associated with a ``cut and run'' mentality that did not promote good forest management. ``Pay-as-cut sales,'' however, in which a timber owner is only paid for timber that is harvested, were associated with ``enlighted'' resource management. Consequently, in 1943, Congress, in an effect to provide an incentive for improved forest management, passed legislation that allowed capital gains treatment under 631(b) of the IRS Code for pay-as-cut sales, leaving lump-sum sales to pay the much higher rate of income tax. It is said that President Roosevelt opposed the bill and almost vetoed it. Today, however, Section 631(b) like so many provisions in the IRS Code, is outdated. Forest management practices are much different from what they were in 1943 and lump-sum sales are no longer associated with poor forest management. And while there are occasional special situations where other methods may be more appropriate, most timber owners prefer this method over the ``pay-as-cut'' method. The reasons are simple: title to the timber is transferred upon the closing of the sale and the buyer assumes the risk of any physical loss of timber to fire, insects, disease, storms, etc. Furthermore, the price to be paid for the timber is determined and received at the time of the sale. Unfortunately, in order for timber owners to qualify for the favorable capital gains treatment, they must market their timber on a ``pay-as-cut'' basis under Section 631(b) which requires timber owners to sell their timber with a ``retained economic interest.'' This means that the timber owner, not the buyer, must bear the risk of any physical loss during the timber sale contract period and must be paid only for the timber that is actually harvested. As a result, this type of sale can be subject to fraud and abuse by the timber buyer. Since the buyer pays only for the timber that is removed and scaled, there is an incentive to waste poor quality timber by breaking the tree during the logging process, underscaling the timber, or removing the timber without scaling. But because 631(b) provides for the favorable tax treatment, many timber owners are forced into exposing themselves to unnecessary risk of loss by having to market their timber in this disadvantageous way instead of the more preferable lump-sum method. Like many of the provisions in the tax code, Section 631(b) is outdated and prevents good forestry business management. Timber farmers, who have usually spent decades producing their timber ``crop,'' should be able to receive equal tax treatment regardless of the method used for marketing their timber. In the past, the Joint Committee on Taxation has studied this legislation to consider what impact it might have on the Treasury and found that it would have no real cost--only a ``negligible change'' according to their analysis. The IRS has no business stepping in and dictating the kind of sales contract a landowner must choose. My legislation will provide greater consistency by removing the exclusive ``retained economic interest'' requirement in the IRC Section 631(b). Reform of 631(b) is important to our Nation's non-industrial, private landowners because it will improve the economic viability of their forestry investments and protect the taxpayer from unnecessary exposure to risk of loss. This in turn will benefit the entire forest products industry, the U.S. economy and especially small landowners.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I want to share some comments about Priscilla Owen. I could not disagree with my distinguished colleague more. Priscilla Owen, I believe, is one of the great justices in America. She has served on the Texas Supreme Court with distinction. She has received support from all the Texas Supreme Court judges. They like and admire her. She has an extraordinary record--a record of public service and private litigation. Her background and study capabilities have been reviewed by the American Bar Association--the gold standard, the Democrats tell us, for whether or not a person should be confirmed. They have--15 lawyers-- reviewed her record. I think it is normally 15. They are lawyers in the community and others who review the record. They interviewed litigants who come before Judge Owen. They interviewed her law partners in the firm where she worked as a private attorney. They interviewed opposing lawyers in cases she was on, judges in the community who know her, leaders of the bar association and presidents of the bar association. They evaluate whether or not a judge is a fair and objective judge. After a complete evaluation of this excellent jurist's career, they have unanimously voted that she is ``well qualified,'' which is the highest rating they can give. So to come in here and say she is an ``extremist'' who will not follow the law and abuses the law is simply not correct. To just say that she dissents on cases is not fair. Great judges who love the law and care about the law tend to dissent more. It is easy just to sign on to majority opinions. Judges who really care and are really concerned tend to review opinions and offer either concurring opinions or objections. Oftentimes, that is a great compliment--that the jurist is concerned about the law and wants to do it right. Prior to her election in 1994 to the Supreme Court of Texas, she was with the Houston law firm of Andrews and Kurth, where she practiced commercial litigation for 17 years. In private practice, she handled a broad range of civil matters at both the trial and appellate levels. She was admitted to practice before various State and Federal courts, as well as U.S. courts of appeals--Federal courts--for the Fourth, Fifth, Eighth, and Eleventh Circuits. She is nominated to be a member of what I call the old Fifth Circuit. Alabama and Georgia used to be in the Fifth and they split. Priscilla Owen is a member of the American Law Institute, American Judicature Society, American Bar Association, and a Fellow of the American and Houston Bar Foundations. She was elected to the Supreme Court of Texas in 2000, garnering 84 percent of the vote, having been endorsed by every major newspaper in Texas. A pretty good record. Is this the record of some sort of extremist? No, it is not. She served as a liaison to the Supreme Court of Texas's Court-Annexed Mediation Task Force, and that is a good thing. We need to have more mediation and conciliation and less litigation, frankly. I am glad to see she is concerned with that. She has been on statewide committees on providing legal services to the poor and pro bono legal services. She was part of a committee that successfully encouraged the Texas Legislature to enact legislation that has resulted in millions of dollars a year in additional funds for providers of legal services to the poor. Priscilla Owen also served as a member of the board of the A.A. White Dispute Resolution Institute. Additionally, Judge Owen was instrumental in organizing a group known as Family Law 2000--an interesting group. It seeks to find ways to educate parents about the effects a dissolution of a marriage can have on children, and to lessen the adversarial nature of legal proceedings while a marriage is being dissolved. This is a lady who cares about children, who cares about families, and wants to do the right thing for them. Among her community activities, Justice Owen served on the Board of Texas Hearing and Service Dogs for the Disabled. She is a member of the St. Barnabas Episcopal Mission in Austin, TX, where she teaches Sunday school and serves as head of the altar guild. I guess some might think that maybe she is too religious. We are hearing complaints about that today. I, frankly, think that being a member of the Episcopal mission, serving on the altar guild, and being a Sunday school teacher is an honorable thing to be recognized and is a positive contribution to the community. I suggest it demonstrates certain values. She has a tremendous academic record. She earned her bachelor's degree cum laude from Baylor University, where she also graduated from law school, in 1977, cum laude with honors. She was a member of the Baylor Law Review, for graduating seniors or juniors to participating in the school's law review, is the highest honor a good law student can receive. It goes beyond grades, but grades are an important part of it. She was honored as the Baylor Young Lawyer of the Year and received the Baylor University Outstanding Young Alumna award. If anybody has any doubts about her abilities--and you cannot always tell from grades--she made the highest score in the State of Texas on the bar exam. I am telling you, they have people from Harvard, Yale, the University of Texas, and all of those schools taking this exam. She made the highest score on the Texas bar exam. I suggest to you there were some talented people taking that exam. She made the highest possible score. She has the intellectual capabilities that everybody who knows her says she has. So what does this boil down to? It boils down to a complaint about her interpretation of a poorly written--because I was at the committee hearing--Texas statute dealing with parental notification. The Supreme Court of the United States and 80 percent of the American people believe that if a young minor, a child, is contemplating an abortion, she ought not to be able to go to the abortion doctor and have that done without at least notifying her parents. Parents love children. I know there are some parents who are abusive and there are difficult circumstances, but most parents are not that way. Most parents love their children. Most parents would be helpful to a child who has difficulties and most parents would be able to discuss that with them in a rational way. The Texas law was attempting to provide that. It was not a bad law, but it was not written with sufficient clarity that a group of judges could get together and always agree on exactly what it meant. Anybody here knows if someone practices law that those circumstances happen. So this is basically what the complaint about her is, over this one subject. A parental notification law says a parent of a young minor girl seeking an abortion should be notified if the teenager is going to have the abortion. Notification does not mean a parent has to agree to the abortion, or to even say it is okay. That would be a consent requirement. Parental notification laws do not require consent. Notification is simply telling a parent a child is about to undergo a major medical procedure. School teachers will not allow a child to take an aspirin without calling the parent, and yet the pro-abortionists think it is perfectly all right for a 13, 14 or 15-year-old, who has gotten themselves in trouble, gotten themselves pregnant, that they should not even tell their parents and go off with some older man perhaps and conduct this procedure. That is the sad reality of it. So even if a parent were to object to this abortion, the teenager could still go forward with it. It would not stand in the way of them going to an abortion clinic. Eighty percent of Americans believe that it is appropriate that parents should get notification. Let me explain how these laws work in Texas. If a teenage girl becomes pregnant and does not want to follow the notification law to give her parents an FYI, she is allowed to petition the court for a waiver. In other words, she can go to the court and say, judge, I do not want to have to tell my parents I am pregnant and I am contemplating an abortion. Tell me I do not have to do so. Give me authority not to do so. She might want the waiver for several reasons. She might be afraid to tell her parents because she is afraid they would become angry or because there might be violence. A teenage girl is given an opportunity to explain to a trial judge what her problem with notification is and to demonstrate to the judge she is mature enough to make a decision on her own. That is what the Texas law provides. A trial court hears that and he observes the teenager. The trial judge sees the teenager personally and is able to enter into a discussion and colloquy with her. After discussing the steps she has taken to become informed, such as talking to a counselor or considering alternatives to an abortion, the judge makes a decision on whether or not the waiver should be granted and whether the girl should be allowed to have an abortion without the knowledge of a parent. Because some of my colleagues seem to be so determined about their support of abortion on demand, I assume they consider this as a right of privacy or something, they insist that no one, for any reason, can even be advised that a minor child would have an abortion. They are not happy with these laws and object to these laws. The National Abortion Rights League and that type of group have opposed these laws, but these laws have been supported by the American people consistently and they have passed. But I guess they would want the judge to grant a waiver in every single case. Well, I do not think anyone would say the court should grant a waiver in every case. Every case is different. So each case should be evaluated and be ruled on on the merits. It is the court's duty to examine the facts in each waiver case to determine if the waiver is suitable. That is what a judge does. If the teenager goes before the trial court and the trial court grants her waiver and says you do not have to notify your parents, she can get an abortion without notifying either one of her parents. If the trial court denies that waiver after a hearing and says she should tell the parents, the teenager can either notify one of the parents or can appeal to the court of civil appeals. At the court of civil appeals level, a minimum of at least three judges review the record of the trial judge to determine whether or not the judge made an error and whether or not the teenager should be able to have an abortion without notifying either parent. The judges look again at the reason behind the waiver request, the maturity of the teenager and her decision-making process. After a complete review of the trial judge's decision, the appeals court either grants the waiver and allows the abortion to go forward without notification or affirms the trial court's denial. If the court of appeals denies the waiver, the girl either notifies one of her parents or can appeal to the state supreme court, such as the Texas Supreme Court where Justice Owen sits. So by the time this case reaches the supreme court where Justice Owen sits, at least four judges will have either seen the teenager or reviewed the record carefully and ruled a notification should be made to at least one parent before an abortion takes place. So that is how the system works. By the time the case reaches the Texas Supreme Court, two other lower courts will have already said the girl should provide the parents the courtesy of telling them their daughter is about to undergo such a major operation. So this is what the issue is all about. This is what the opponents are unhappy about, and they talk about it aggressively. Justice Owen has never made an initial decision to deny a waiver. Her position on the Texas Supreme Court does not permit that. Her position only allows her to review denials of waivers already made by lower courts. In upholding the lower court's denial of a waiver, Justice Owen is only agreeing with the trial judge, the judge who had the opportunity to visualize and see the teenager and to observe her, and also the judges on the court of appeals, the intermediate level court. Justice Owen simply did what appellate judges do. Appellate judges allow the trial court to be the trier of fact and in most instances only review their decisions on abuse of discretion grounds. So to break it down, Justice Owen merely ruled in a few parental notification cases that a trial judge and at least three judges on the court of civil appeals did not abuse their discretion by having a teenage girl notify her parents she intended to have an abortion. That is, I submit, far from being some sort of judicial activist, rogue judge who does not adhere to the law. An FYI to a parent before a major surgery, that is what this filibuster is all about. Some of my colleagues are really strongly committed to an almost absolutist position on abortion. They oppose limiting partial-birth abortion. They oppose any limitation whatever. Now we are at the point of seeing this sterling nominee, so well qualified, subjected to a filibuster because she did her best to evaluate and interpret the Texas law. In each case, her decision was in conjunction with and to affirm the decision of a trial judge and a three-judge civil appeals panel below her. When my colleagues talk about being out of the mainstream, I suggest they should look at themselves. This accusation against Justice Owen is the only thing that is out of the mainstream. We are not talking about requiring parental consent for abortions. We are only talking about notice. If a parent objects, a doctor is still required to perform the abortion and allowed to perform the abortion if the child wants. In Justice Owen's State of Texas, the law does not allow a teenager to get an aspirin in school without parental consent. If a teenager wants to get a tattoo, the law requires parental consent. If a teenage girl wants to get her ear pierced, parental consent is required. So if a girl wants to take an aspirin in school, get a tattoo or have her ear pierced, her parents not only have to have notification, they have to consent. They have to sign off on it. That is not the case with abortion. In my view, giving a parent notice about an abortion for a teenage girl is nowhere outside the mainstream of American policy or American law. Justice Owen is one of the finest nominees this Senate has ever had the opportunity to consider. For her nomination to be filibustered is an atrocity of the confirmation process and to the tradition of this Senate. I strongly support her confirmation. I believe if logic and reason prevail, we will confirm her instead of filibustering this nomination. This nominee is sterling. She has the highest possible rating of her peers. She has performed as one of Texas's finest litigators and has won election to the Supreme Court of Texas with 80 percent of the vote, having the support of every major newspaper in her State. I find it difficult to see how we now are not even allowing her to have a vote in this body. They say she was rejected once. I was on the committee. That was when the Democrats were in the majority. They voted a straight party line in committee after I thought she testified brilliantly in examination. That never happened in the 8 years President Clinton was President. Never did we vote down a nominee in committee on a party-line vote. They say, well, only two of them have been blocked here. In 8 years, there were 377 confirmations of President Clinton's judges. One was voted down. None were voted down in committee. She was voted down on a party-line vote in the Senate Judiciary Committee, but she had not been rejected by the full committee. If they think she is going to be rejected again, why don't they let us have a vote? Let's vote on it. I suggest this nominee is going to win a majority of the votes in this Senate. The Constitution makes clear that the Senate has an advice and consent power. It notes, with regard to treaties, that the Senate shall advise and consent provided two-thirds agree. Then with regard to the confirmation of all other offices, it just says the Senate shall advise and consent. Since the founding of this country, we have understood that to mean the Senate will have a majority vote on the confirmation. There is no other logical thing it could mean. So now we have ratcheted up the game. I recall distinctly a little over 2 years ago when my Democrat colleagues went to a private retreat. A number of law professors, Lawrence Tribe, Cass Sunstein, and Marsha Greenberg went there, professors all who advised them to change the ground rules on the judicial nominations. It is written in the New York Times. Since then, there has been a systematic change in the ground rules of judicial confirmations. When they had the majority, they attempted to kill nominees in committee on a party-line vote, which had never been done before. And now, amazingly, they are going to the filibuster. The American people need to understand something important. In the history of this country, there has never been a filibuster of a circuit or district judge. Never. It has always been an up-or-down vote. I remember when some did not like some of President Clinton's judges and they said we should filibuster; Chairman Hatch said, No, we do not filibuster judges. When holds went on too long--the way you defeat a hold is to file a motion for cloture--and a cloture vote was moved for by Republican leader Trent Lott to bring up Democratic Bill Clinton's judges. I voted for cloture on each one of them. Sometimes I voted against the judge, but I voted for cloture to bring the vote up because I did not want to participate in a filibuster. We have a big deal here. Why someone would seek out this magnificent nominee, this person who is not only qualified for the Fifth Circuit Court of Appeals but qualified to sit on the U.S. Supreme Court, and filibuster their nomination, is beyond me. It is just beyond me. I conclude by saying I spent over 15 years of my professional career trying cases in Federal court as a U.S. attorney and assistant U.S. attorney. I appeared before courts of appeal. I wrote briefs to courts of appeal. I appeared before Federal judges. I think I have looked at her record carefully. I have heard the explanations she has made in committee. I think they are imminently sound and reasonable. I think President Bush could not have found a finer nominee. I have every confidence that she would be a superior judge on the court of appeals, and I am absolutely confident, were she given an up-or-down vote, she would be confirmed. We need to take seriously our responsibilities here. Let's have an up-or-down vote. Let's confirm this fine nominee. She will serve us and America well. I yield the floor and suggest the absence of a quorum.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I ask unanimous consent that the committee report No. 108-37 which accompanies S. 880 be star printed with the changes that are at the desk.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I ask unanimous consent that we proceed to a period of morning business.

Mr. SESSIONS

Mr. SESSIONS. In accordance with the agreement of April 11, I inform my colleagues on behalf of the majority leader that the vote on the Sutton nomination will occur at 12 noon tomorrow. I further ask unanimous consent that the Senate recess from 12:30 p.m. to 2:15 p.m. tomorrow for the weekly party luncheons.

Mr. SESSIONS. Mr. President, on behalf of the majority leader, I ask unanimous consent that when the Senate completes its business today, it stand in adjournment until 10 a.m. Tuesday, April 29. I further ask unanimous consent that following the prayer and pledge, the morning hour be deemed expired, the Journal of proceedings be approved to date, the time for the two leaders be reserved for their use later in the day, and the Senate then return to executive session and resume consideration of the nomination of Jeffrey Sutton to be circuit judge for the Sixth Circuit, with the time until 12 noon equally divided between the chairman of the Judiciary Committee and Senator Harkin.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I would like to make some remarks on the pending nomination of Jeffrey S. Sutton, a nominee for the Sixth Circuit Court of Appeals. He is an extraordinary and excellent attorney whom the President has nominated. In 1990, he graduated first in his class at Ohio State University Law School. I know Senator DeWine would agree that that is one of America's great law schools. After law school, he served as a law clerk for a judge on the Second Circuit Court of Appeals, the same kind of court of appeals on which he would be now a judge. He has had firsthand experience on how a court of appeals operates. Then he clerked for two Justices on the U.S. Supreme Court. That is not something easily achieved for a graduating lawyer. To be chosen to be a law clerk for a Supreme Court Justice is a remarkable achievement. Not many get it, and many apply for it. He clerked for Justices Lewis Powell and Antonin Scalia on the Supreme Court. From 1995 to 1998, he served as the Solicitor for the State of Ohio. That means he was chosen to argue appellate cases for the State of Ohio, to advise the State on what cases to take up, what positions to take on those cases. Again, it is the kind of experience that is invaluable for a court of appeals nominee. Since 1995, he has taught courses on Federal and State constitutional law as adjunct professor at Ohio State. He is currently a partner in the Columbus, OH, office of the esteemed law firm of Jones, Day, Reavis & Pogue. Mr. Sutton has argued 12 cases before the U.S. Supreme Court; he has won 9 of them. That is quite an extraordinary record. Whether he won them or not, just being chosen to argue any case before the Supreme Court is a great honor. Very few lawyers in their entire career will ever be able to argue a single case before the Supreme Court. Why was he chosen to argue 12 cases before the Court? Because he was recognized as a brilliant lawyer, a person who understood appellate law and procedure, who understood constitutional issues and statutory construction and the things that appellate judges do. That speaks well of him. He also has argued 14 cases in State supreme courts. Just this year, the American Lawyer magazine named Mr. Sutton one of the best lawyers in America under age 45. To recite his credentials is to reach one conclusion: If you need representation in appellate court, you could hardly do better than Jeffrey Sutton. We are looking at a preeminent nominee, one of the best lawyers in America. The ABA has given Mr. Sutton what the Democrats call the gold standard, a qualified rating, with a minority voting ``well- qualified.'' His qualifications don't seem to matter to a few who are dedicated opponents, and who, I have to say, are not being realistic in this matter. They are not being fair, and they are showing partisanship, and an extreme ideological bent. The special interest groups and some in this body have targeted this nominee. They have raised the same arguments we have heard before. They allege, amazingly, that he is hostile to the rights of the disabled. They claim he favors weakening laws that deal with age discrimination. They say he is pro-life because he is a member of the supposedly pro- life Federalist Society. But these claims are not pertinent. They miss the mark. Let's start with this disability rights question. It is a very important issue. It is something we ought to talk about with regard to Jeffrey Sutton, and we need to remember the concepts on this matter as we deal with other nominees who come before the Senate. The charges and complaints are based in large part on Mr. Sutton's representation of my home State of Alabama in Board of Trustees of the University of Alabama v. Garrett. In the Garrett case, what happened was that an employee of the university sued the university, claiming that university's policies violated the Americans with Disabilities Act. Mr. Sutton argued on behalf of the State of Alabama, and the Supreme Court agreed with him that Congress had not identified a pattern of irrational State discrimination in employment against the disabled. Congress, therefore, he argued, could not abrogate the State's 11th amendment immunity from suits for money damages by the passage of the Americans with Disabilities Act. This well-established principle was recognized centuries ago by Blackstone before the founding of this country. I would say parenthetically that I served as attorney general of the State of Alabama. I know what the duties of attorneys general are, as does Senator Cornyn in the chair, a member from the State of Texas. It is the duty of the State to defend its prerogatives. An attorney general who does not defend the legal authority of a State, and allows that authority to be eroded from any source whether it be the Congress or any other entity is failing in his or her duty. Blackstone, with regard to the concept of being able to sue the States, said: No action lies under a republican form of government against the state or nation, unless the legislature has authorized it: [this is] a principle recognized in the jurisprudence of the United States, and of the individual states. So no action lies against the State or the Nation unless a legislature authorizes it. The reason is pretty simple. The power to sue is the power to destroy. States or the Federal Government will not allow themselves to be destroyed by lawsuits. So the ability of private parties to sue a sovereign Federal Government, or a sovereign State government, is limited. Now, State sovereign immunity under the Eleventh Amendment is the concept we are dealing with, but those who want to oppose Mr. Sutton have taken the position that his defense of sovereign immunity shows that he is opposed to the Disabilities Act. Critics say he doesn't care about disabled children because he defended the legitimate interests of the State of Alabama in a lawsuit involving how the Americans with Disabilities Act ought to be interpreted. This argument is baseless on many levels. First, I want to talk about these sovereign immunity cases. Some critics say that because Mr. Sutton argues for state sovereign immunity, he somehow believes that persons who are discriminated against because of their disabilities are not entitled to redress. That is not true. The National Association of Attorneys General--which I was pleased to be a member of, as was the Presiding Officer, and I'm sure as were a majority of attorneys general at that time who were also members of the Democratic Party--in a letter signed by 27 of their members, including 12 Democrats, said: We are particularly concerned when we see a lawyer being attacked not for positions he advocated as a private individual, but for positions he argued as a legal advocate for the State government. Well said. It is not a question of whether Mr. Sutton believed that an employee of any State ought not to have redress. The question is whether or not this was a constitutionally proper way to go about it. If lawyers were attacked for vigorous client representation, this would have a chilling affect on their willingness to take unpopular cases. That would be unfortunate for our legal system. With respect to the Garrett case, it is not an exaggeration to say that the case has nothing to do with the overall worthiness of the Americans with Disabilities Act--nothing at all. Mr. Sutton himself stressed in his brief to the U.S. Supreme Court that the ADA ``advances a commendable objective--mandatory accommodation for the disabled.'' Seth Waxman, President Clinton's Solicitor General and Mr. Sutton's opponent in the Garrett case, said he saw nothing to suggest that Mr. Sutton disagreed with the aims of the Americans with Disabilities Act. What Mr. Sutton did argue was that the 11th amendment principle of State sovereign immunity protects States from lawsuits in federal court asserting violations of the Americans with Disabilities Act. Seven other States--Arkansas, Hawaii, Idaho, Nebraska, Nevada, Ohio, and Tennessee--submitted briefs joining with him to affirm this position. The Supreme Court ultimately agreed. In the Garrett case, the question before the Supreme Court was not the validity or purpose of the ADA; it was whether the Federal Government could abridge State sovereign immunity by making States liable in Federal court for violations of the ADA. This issue involves a very narrow and small part of the act. In fact, only the 3.7 percent of the American workforce employed by a State would be affected by this issue. The 96.3 percent of the workforce not employed by a State was not at all affected by the Supreme Court's decision. In other words, this Congress authorized individuals to file lawsuits for ADA violations against both private entities and also against the States. The State of Alabama said that allowing the Garrett lawsuit to go forward against the State violated the State's sovereign immunity. When the State of Alabama took the case to the Supreme Court, it looked around the country for one of America's best appellate lawyers, and it chose Jeffrey Sutton. He argued the case and won it in the Supreme Court. That win does not gut the ADA; it hardly impacts it in even a minor way. Only 3.7 percent of the workforce would be impacted by it. So the Supreme Court's decision in Garrett meant almost nothing, as far as the overall enforcement of the ADA was concerned, in dealing with discrimination against those employees who are disabled. What was at stake for the States in Garrett was how the Constitution defined the fundamental relationship between the State government and Federal Government. The Supreme Court explained the relationship in the Garrett case this way: The ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not be sued by private individuals in Federal Court. We have recognized, however, that Congress may abrogate the States' Eleventh Amendment immunity when it both unequivocally intends to do so and ``act[s] pursuant to a valid grant of constitutional authority.'' Congress may subject nonconsenting States to suit in Federal Court when it does so pursuant to a valid exercise of its Section 5 power under the Fourteenth Amendment. That is what the Supreme Court was talking about. It didn't have anything to do with the merits or demerits of the Americans with Disabilities Act itself. The Supreme Court went on to conclude that the narrow provision applying the ADA to the States was not a valid exercise of Congress's section 5 power under the 14th amendment: Congress is the final authority as to desirable public policy, but in order to authorize private individuals to recover money damages against the States [also sovereign entities, I add parenthetically], there must be a pattern of discrimination by the States which violates the Fourteenth Amendment, and the remedy imposed by Congress must be congruent and proportional to the targeted violation. Those requirements are not met here. So when my good friend Senator DeWine--an excellent lawyer from Ohio--earlier indicated he thought the Supreme Court was in error, maybe that was because he was here when the ADA was passed and I wasn't. But as a former attorney general, I think the Supreme Court was correct: If we allow Congress to go around willy-nilly and knock down the classical, historic sovereign immunity of our States, it will weaken the States to an extraordinary degree. The Supreme Court went on to take pains to emphasize that its decision did not deprive the disabled of their rights: Our holding here that Congress did not validly abrogate the States' sovereign immunity from suit by private individuals for money damages under Title I [of the Americans with Disabilities Act] does not mean that persons with disabilities have no Federal recourse against discrimination. Title I of the ADA still prescribes standards applicable to the States. Those standards can be enforced by the United States in actions for money damages, as well as by private individuals in actions for injunctive relief. . . . In addition, State laws protecting the rights of persons with disabilities in employment and other aspects of life provide independent avenues of redress. In other words, the Supreme Court said this would not leave a disabled person who works for a State without a remedy for discrimination. That person can file for an injunction, receive back wages if they have been unfairly terminated, and get an order that they have to be reinstated. But given the classical doctrine of sovereign immunity, given the record this Congress developed in passing the ADA, and given the language of the statute that was passed, the Supreme Court could not legitimize an action for money damages against the States. As a matter of fact, I would note all 50 States have passed laws to give protections to the disabled, in addition to the Federal ADA, in part by providing remedies like injunctions and back pay. It is simply not true that the States do not have any concern for disabled citizens. I also think it is notable that when Congress passed the ADA, it did not impose on the Federal Government the obligations it placed on the States. The Members of this body express great anguish that the States did not gracefully allow themselves to be sued, and they complain that the attorneys general of the States did not knuckle under by allowing people to sue the States. But when Congress passed the ADA, it did not make the act applicable to the United States Government. Even though the Federal Government is the largest employer in America, it does not have to extend to its own disabled employees the same benefits it demands of the States. It would be ironic, to say the least, for us to criticize Jeffrey Sutton for advocating State constitutional immunity from suit under the ADA when this very Senate exempted the Federal Government from the ADA's requirements. This criticism is particularly unfair to Mr. Sutton because he has a demonstrated commitment to the disabled. Beyond his sound historical and effective legal arguments in the Garrett case before the Supreme Court, anyone who knows Jeffrey Sutton knows that he is sensitive to the needs of the disabled. When Mr. Sutton started ninth grade, his father became head of the Matheny School in Peapeck, NJ. Matheny was a boarding school providing education and life skills to disabled children with cerebral palsy. Mr. Sutton spent time at the school doing maintenance work. This experience made him well aware of the challenges faced by the disabled. Since that time, Mr. Sutton has continued his commitment to the disabled. Few are better qualified to speak about that than Cheryl Fischer. Ms. Fischer, a blind woman, applied for admission to Case Western Reserve University's medical school. The school denied her admission because of her disability. Mr. Sutton was asked to participate in the case by Ohio's attorney general, and was given a choice of whom to represent. He was told, ``you can represent the school and oppose a blind woman's right to be admitted to the medical school, or you can represent her.'' He chose to represent Cheryl Fischer, without charge, pro bono, and he passionately argued her case before the Supreme Court of Ohio. He lost the case, but Ms. Fischer has no doubt about Mr. Sutton's ability and integrity. She said: I think he believes thoroughly in the civil rights of all people. He is not someone who would want to minimize the rights of disabled people. He helped me stand up for what I believe in. She went on to say: I would definitely like to see him on the Federal court. Cheryl Fischer is just one of many who believe Jeffrey Sutton would protect disability rights and civil rights generally as a judge on the very important Sixth Circuit Court of Appeals. Mr. Sutton is also a board member of the Equal Justice Foundation. It is a nonprofit organization based in Columbus, OH, that provides legal representation to the disadvantaged, including the disabled. In 1999, the Foundation sued to compel the city of Columbus to comply with the Americans with Disabilities Act by installing curb cuts for wheelchairs on city streets. The executive director of the Equal Justice Foundation, Kimberly Skaggs, disagrees with Jeffrey Sutton politically but supports his nomination to the Sixth Circuit. She said: Mr. Sutton possesses all the necessary qualities to be an outstanding Federal judge. I have no hesitation whatsoever in supporting his nomination. Frankly, I have been disappointed by the leaders of the disability community on this issue. They have stirred up opposition. They have told the American disabled community that Jeffrey Sutton does not care about the disabled. That is not true, but that is what they have said. They said that the sovereign immunity position he advocated for his clients in ADA cases meant he personally did not care about the disabled, that he did not like them, that he was opposed to them, and that he would not give them a fair shake in court. That is basically what they have said. They have suggested his legal efforts were aimed at harming the disabled, when in truth he was simply vindicating the historical legal protection of the States for his clients. The State governments have long enjoyed this protection from federal lawsuits. Another groundless allegation is that Mr. Sutton opposes laws against age discrimination. This allegation stems from his representation of the State of Florida in a case called Kimel v. Florida Board of Regents. In Kimel, the Supreme Court agreed with Mr. Sutton's argument that it was not necessary for Congress to abrogate State sovereign immunity through the Age Discrimination in Employment Act because the States were already protecting their senior citizens against discrimination. As with the disabilities right issue, Mr. Sutton did not advocate judicial repeal of the act. Far from it. He explicitly stated that the ADEA advances a commendable policy--nondiscrimination against the elderly. What he argued for was the proper constitutional balance between the State and Federal governments. The Supreme Court agreed with him. So now these people are saying that a reasonable and honorable position he advocated for his client--whether he won or not, even though he did in fact win--somehow disqualifies him from the bench. I think that is unfair, and I am disappointed with some of the people who are making these arguments because I think if they took a moment to look at it, they would know these arguments were not well taken. Some have even brought up that he is a member of the Federalist Society. One special interest group deems the society hostile to reproductive rights, and suggested that this nominee is guilty by association. The way some of my colleagues on the other side of the aisle have talked about the Federalist Society, it would seem that membership might amount to a scarlet letter that nominees should wear during the hearings. But this is an unwarranted attack on the Society and its members. Although it sponsors numerous discussions of controversial issues, from abortion to the war against terrorism, the Federalist Society takes no position on any of these issues. Regular panelists at their conferences include noted liberals like Harvard law professor Laurence Tribe and ACLU president Nadine Strossen. The society cannot be said to be hostile to abortion rights or any other rights, and so its members--here, Jeffrey Sutton--should not be blamed for having participated in the Society. Finally, we should move this nomination forward because of the understaffed Sixth Circuit bench. The Judicial Conference of the United States, which deals with court staffing and other issues related to our Federal judges, has determined that the vacancy that would be filled by Mr. Sutton's appointment is a judicial emergency. In fact, there are currently six vacancies on the Sixth Circuit, all of which have been deemed emergencies. This court is in crisis. Those six vacancies impair the administration of justice. The current understaffing on that court makes it imperative we promptly examine and approve nominations of all the six circuit candidates, particularly this eminently, extraordinarily qualified nominee, one of the best lawyers in America, Jeffrey Sutton. I had the pleasure to see Mr. Sutton testify. He was asked questions all day long until 9 p.m. at night. He was complimented by Senator Dianne Feinstein for his willingness to discuss anything he was asked. He answered the questions openly. He answered the questions with great legal skill and judgment time after time after time. I cannot think of a single answer that he gave in that long examination that anyone found offensive. It was a tour de force of legal exposition. I was extremely impressed not only with his brilliance but with his kind demeanor and his sensitivity to the questions. He listened to people's questions. He responded very carefully and sensitively to those questions. Those were precisely the qualities I believe would make him an extraordinary court of appeals judge. You could look throughout this country and find very few people more qualified by ability, by experience, by integrity, to hold this high office. I strongly urge my colleagues to confirm his nomination. I yield the floor and suggest the absence of a quorum.

Mr. SESSIONS. I note that the Senator from Nevada, who is himself a superb lawyer, has represented criminals and defended them on occasion, as I have. I would point out that just because he represented a cause and advocated it, it does not necessarily mean he shared all those views, personally. I also would note, and am pleased to see, that the State of Nevada joined Alabama as amicus curiae in the Garrett case. Maybe the Senator would like to once again respond. I am not entitled to the last word. If not, I will go forward with morning business.

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

Mr. SESSIONS. Mr. President, I will comment to the distinguished Senator from Nevada about Senator Harkin's passionate advocacy for the disabled in America. He cares deeply about that issue and there is no one more eloquent on it than he is. I ask the Senator from Nevada if he is aware that Jeffrey Sutton voluntarily agreed, on a pro bono basis, to prepare and to passionately argue a case before the Supreme Court of the State of Ohio that a woman who was blind should be admitted to the Case Western University Medical School, even though he lost the case. I wonder if the Senator knew that? A lot of the Senators have not known that he has a personal concern about this issue and has given of his own wealth--that is, his time--toward that effort.

Mr. SESSIONS

Mr. SESSIONS. I ask unanimous consent that S. 876 be star printed with the changes that are at the desk.

Mr. SESSIONS

Mr. SESSIONS. If there is no further business to come before the Senate, I ask unanimous consent the Senate stand in adjournment under the previous order.

Mr. SESSIONS

Mr. SESSIONS. For the information of all Senators, tomorrow morning the Senate will resume debate on the nomination of Jeffrey Sutton. At 12 noon, the Senate will vote on the Sutton nomination. Tomorrow afternoon the Senate will resume consideration of the nomination of Priscilla Owen to be a circuit judge for the Fifth Circuit. We will continue to work with the Democratic leader in an effort to reach a time agreement on this important nomination.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, we recently heard a wonderful address by Senator Byrd when he talked about Easter and expressed his views about it. He did so as a believer. This is a great and wonderful free country, and we are able to express our views. I wish to take a few moments to comment on some of the attacks from the left on a comment recently made by Secretary of Education Rod Paige. Secretary Paige is a great educator, a great man. I am so impressed with him. When he took over the Houston County school system in Texas, only 37 percent of the students were passing the basic Texas test. In 5 years, by bringing on discipline, accountability, a rigorous testing program, not accepting failing schools and being intolerant of them, and being intolerant of educators who were not performing, he doubled the number of students passing that test. As he told me, in the fourth or fifth year, he got a little extra money, but basically he achieved those results without extra money in the Texas State school system. I believe he is a tremendous man. He loves those children. He loves the children more than he does the bureaucrats and the educators. He wants to know if they are learning, and he cares about them. He cares about their values. He cares about whether or not they are becoming better children, not just smarter children. The complaints arose from a story published in the Washington Post which misquoted the Secretary. This is what the quote was in the Washington Post, quoting Secretary Paige: All things equal, I would prefer to have a child in a school that has a strong appreciation for the values of the Christian community, where a child is taught to have a strong faith. First of all, a lot of Americans believe that. Lots of Americans believe that. I submit a majority of Americans believe that. But, this is what a tape recording of his question-and-answer interview demonstrates that he actually said: Question: One final question, Mr. Secretary. We're hearing a lot in Christian colleges and universities about Christian world view education. Do you have any comment on that? What do you think about that? Answer: No, I have not heard enough about that to formulate a view. So I'll probably need to pass on that one. But they did not let him get away with that. You know how they press. Question: Given the choice between private and Christian or private and public universities, who do you think has the best deal? Secretary Paige answered: That's a judgment, too, that would vary because each of them have real strong points and some of them have some vulnerabilities, but you know, all things being equal, I'd prefer to have a child in a school where there's a strong appreciation for values, the kinds of values that I think are associated with the Christian communities so that this child can be brought up in an environment that teaches them to have strong faith and to understand that there is a force in their lives. So the Secretary of Education basically was saying he would like to have a child in a school where there is a strong appreciation for values, and those values are sometimes associated with the Christian communities. So that brought the left up in arms. That is what we are too often reduced to in this country, that one is not able to express those kinds of ideas. So we are at the point now where we question whether or not the words, ``In God We Trust,'' should be on the wall of this Chamber. There they are, several inches high, right over the main door to this Chamber. Are we going to rip that down? Take down the Ten Commandments that are in the Supreme Court building? Have no prayer at football games at graduation? That pretty well has been taken care of. I remember when former President Jimmy Carter's Attorney General, the wonderful Griffin Bell, was asked about litmus tests for judges, and he responded without hesitation. He had left office at that point or he probably would have caused a controversy. He said: I tell you we ought to have a litmus test. Nobody should be a Federal judge who does not believe in prayer at football games. We cannot say ``under God'' in the pledge now according to the Ninth Circuit Court of Appeals. They struck down the Pledge of Allegiance. They are not happy with the Boy Scouts because they teach values and they believe in disciplining personal behavior. We certainly cannot do those things in school, the left says. So what we are asking for, it seems to me, or at least the hard left is, elimination of any reference to moral or spiritual values in public life in this country, and I do not think that is how we were founded. Secretary Paige has dedicated his entire career to promoting children and promoting diversity, making sure that all children of all ethnic groups and all faiths have access to the best possible education. Yes, he is a man of faith. He is a man of conviction. He is a man of character. Those are good reasons for him to be the Secretary of Education. Do we want someone who is not? Secretary Paige talks about preferring a school that has a strong sense of values; not that he is requiring or thinks all children should go to Christian schools. He never said that. He uses Christianity as an example of those values because that is his background, because he has made it very clear he believes the same could be said of other religions. I agree with what the Secretary said, and I think that those who would attack him for talking about the state of American education are doing a tremendous disservice to our children. Let's face it, this is part of a regular, organized attack on faith more than it is a complaint about Dr. Paige. It is close to requiring a religious test for public service, prohibited by our traditions in law. It is saying that your religion must be secular; people of faith need not apply. If you have any religious beliefs, keep them to yourself, do not let them guide you, for heaven's sake, in anything that you might do. Unfortunately, there is a group in this country, small but very vocal, who are offended by any expression of faith in public life. I think we have drifted out of sync, we have drifted away from what we are about. I do not think it is healthy. Religion is woven into the fabric of our great Nation. Faith has always guided our leaders. I think most Americans were taught, as I was taught, not to make fun of someone else's religion, to respect their faith. It did not have to be the same as yours. Ronald Reagan called America ``a shining city on a hill.'' We are a nation that believes so deeply in our values we confidently promote those values around the world. Reagan understood the role of religion in fulfilling our mission. Here is what he believed about God in schools: The Declaration of Independence mentions the Supreme Being no less than four times. ``In God We Trust'' is engraved on our coinage-- And I will note, on that wall right there. The Supreme Court opens its proceedings with a religious invocation-- Hear ye, hear ye, hear ye. God bless this Honorable Court and save these United States. And the Members of Congress open their sessions with a prayer. We have a prayer every time this door opens. I just happen to believe the schoolchildren of the United States are entitled to the same privileges as Supreme Court Justices and Congressmen. I think we have gone too far. Thomas Jefferson, whom we know to be the architect of that great Virginia Statute for Religious Freedom, and who is considered to be a great bulwark of the separation of church and state, said: I consider the doctrines of Jesus as delivered to contain the outlines of the sublimest system of morality that has ever been taught. He would not make Secretary of State today if he were to say that. People can have different views. Public officials can express their own views. President Reagan said: Without God there is no virtue because there is no prompting of the conscience; without God, there is a coarsening of the society; without God democracy will not and cannot long endure. If we ever forget that we are One Nation Under God, then we will be a Nation gone under. If one wants to see a nation that has a virtueless government, all they have to do is look at Iraq for the last 25 years. Certainly, Saddam Hussein was not a religious person of any kind, Muslim or any other faith. To see such a nation gone under and to see a revival, one had to just turn on the television on Wednesday morning to see the exhilaration of the Iraqis dancing on Saddam Hussein's statue. I thought about that poem: My name is Ozymandius, king of kings. Look on my face and beware, and now it has fallen in the desert and nobody has seen it in a thousand years. For decades, these helpless citizens have lived under a government without, more or less, virtues or values. The only thing that was valued by the government was the power and privilege of the Saddam Hussein regime. Their own might was their God. The Iraqi people, on the other hand, have been liberated by a group of nations, led by our Nation, a government that was motivated by values--liberty, justice, democracy, morality, fairness, equality. Those are the sorts of values I think Secretary Paige was talking about. Right and wrong. Right and wrong does not come from the self- interest of whatever dictator happens to be in power. Right and wrong comes from the Creator. At our core, we are, and remain a people who believe that each life has sacredness, and that is why our military would not leave one life or not rest with one POW still in prison or even without a body recovered because we believe life is sacred. As the Declaration says, we are a people endowed by our Creator with certain inalienable rights. Thus, right and wrong for believers never changes. And millions of Americans, many of them Christians, Muslims, and Jews, take their guidance on questions of right and wrong out of their core faith in a creating God. Before those on the secular left attack people for expressing their religious beliefs or their desires to instill values and moral and religious values in their children, I would urge them to take a step back and think about the millions of people of faith in this country. We strike the right balance in America, I believe. Religion is okay, we think. It is good. It is to be encouraged, not diminished, but we respect people of other faiths. We do not demean them. People can come here from Muslim nations and live happily and safely, and if any of them are harmed we defend them; we prosecute those who harm them. We will not accept that. It is our heritage. The complaints on Secretary Paige should be turned down. It is time to reacquaint ourselves with the principles of our Founders. They got it right. Every person was free to be faithful or to be secular, to follow their own creed. Government should never bring force to bear, our Founders said, on the mind of man. Never establish a church by the government. But the Constitution does provide free exercise. The Constitution simply says about religious faith: Congress--us--shall make no law respecting the establishment of religion or prohibiting the free exercise thereof. Secretary Paige was not out stirring this issue up. He had to be asked repeatedly before he even got into the subject. It was not on his mind. He was asked and he gave his personal view. He said: I think. He did not say ``everybody else did'' or ``You must believe.'' He said: I think we should have an appreciation for values, the kinds of values often associated with the Christian community. What is wrong with that? Have we gone that far down the road to denying the right of our American citizens to freely exercise and comment on their faith? I hope not. I yield the floor.

Mr. SESSIONS

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

Mr. SESSIONS

Mr. SESSIONS. Madam President, I take this opportunity to recognize the retirement of a friend and outstanding Air Force Officer, Major General A. Bowen Ballard. Major General Ballard's superior and exceptionally distinguished Air Force career warrants comment as the Air Force says thank you and goodbye to one of its best. Major General Ballard has served this Nation and the United States Air Force for more than 37 years. His service has been marked by increasingly demanding command and staff positions, culminating as the Mobilization Assistant to the Commander, Air University, Maxwell AFB, AL. Throughout his military service, Major General Ballard has served with distinction and honor. It is my privilege to recognize his many significant contributions and to commend him for his outstanding service. A son of Alabama, Major General Ballard grew up in Montgomery and attended elementary and junior high school in Cloverdale. After graduating from Lanier High School, he enlisted in the Alabama Air National Guard as an intelligence specialist, while at the same time he attended the University of Alabama earning a degree in business and finance. In 1966, he was commissioned and resumed his service in Air Force Intelligence. Major General Ballard attended the Air Intelligence School at Lowry Air Force Base, CO, and from 1967 until 1974, he filled various intelligence positions with the 187th Tactical Reconnaissance Group, Alabama Air National Guard. Leaving the Alabama Air National Guard and joining the Air Force Reserve in 1974, Major General Ballard was assigned to the Air Force Intelligence Service at Fort Belvoir, VA, where he played a key role in transitioning Air Force Special Operation Forces from the Tactical Air Command to the Military Airlift Command and participated with Air Force Special Operation Forces on an international basis. Major General Ballard was involved with the North Atlantic Treaty Organization and the United States European Command for many years. During his assignment as the Mobilization Assistant to the Chief of Staff, Intelligence, Headquarters United States Air Force, Major General Ballard was recalled to active duty in a key position of leadership to manage the planning, directing, and establishing of policies and procedures for all USAF intelligence activities. As the Mobilization Assistant to the Director of the National Security Agency/Chief, Central Security Services, Fort George G. Meade, MD, Major General Ballard's guidance and direction was critical in identifying and resolving critical issues affecting the Air Force during one of the most turbulent and demanding times in our history. Major General Ballard frequently met with the senior military leadership, to include the Secretary of Defense, Secretary of the Air Force, the Chief of Staff of the Air Force, and members of the Senate and Congress, effectively presenting crucial positions involving specific operational intelligence and professional military education issues. He achieved unparalleled success in charting the strategic direction and employment concepts as the Chairman of the Assistant Secretary of Defense's Command, Control, Communication and Intelligence Steering Council. Major General Ballard represented commanders of the Air University and Air Force Space Command on numerous panels, boards, and work groups, including personally leading the development of creative and innovative improvements to the Joint Reserve Intelligence Program. Major General Ballard was directly responsible for identifying, developing and implementing a significantly new direction for Reserve Intelligence roles and missions in space operations. Under his untiring leadership, the Air Force Space Command Reserve Intelligence Program transformed into a vital partner in on-orbit space collection intelligence assessments. As the Mobilization Assistant to the Commander, Air University, he assisted the commander with significant improvements to Air University schools in curricula and coursework, joint programs, faculty management, computer technology, and communications systems. As a result of his efforts, all graduates of Air Command and Staff College and Air War College now receive masters degrees in military science. Major General Ballard's leadership skills were constantly in high demand. For the Joint Chiefs, he developed the Joint Chiefs of Staff/ Department of Defense Strategic Plan, providing unprecedented joint contingency support to operations in both Operation Noble Anvil and Operation Allied Force. For the combatant commanders, he applied his focus on language and distributed joint reserve component intelligence operations and implemented a flexible solution which paid significant dividends in the military theater of operations and in the global war on terrorism. Major General Ballard also established the foundation for joint cryptology reserve component support to the European and Pacific Command. The formulation and justification of cryptolgic reserve support elements blossomed into greatly improved reserve component support in intelligence operations ensuring a significant reserve augmentation force well into the 21st century. Major General Ballard has demonstrated time and time again superior performance, planning, coordinating, directing, and managing of Air Force operational intelligence programs, and Air Force Reserve intelligence mission augmentation activities. Major General Ballard's work with the Air University Integrated Program Review process resulted in significant increases in Individual Mobilization Augmentee positions to meet critical Air University mission needs. As a direct result, Air Reserve forces made significant and long-lasting contributions to successful Air University mission operations. From determining the effective and efficient use of Reserve Force personnel in war and during peacetime, to redefining roles, missions, force structure, training, morale, finance, recruiting, and retention, Major General Ballard always led from the front. We wish to extend congratulations to Major General Ballard on the occasion of his retirement. We are honored to recognize his many accomplishments and ask that our colleagues in the United States House of Representatives join in recognizing his very worthy achievements.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I just will share a few thoughts I think are very important with regard to this legislation. We seem to have strong or at least grudging support from everybody on the underlying portions of the bill. At least that is what we are told repeatedly. But there is a suggestion that the Feeney amendment is such a horrible thing that the entire PROTECT bill should not go forward. I will just say a couple of things about that. The Feeney amendment was designed to deal with a growing problem of Federal judges downward- departing from the mandates of the sentencing guidelines and thereby giving lighter sentences than should be given to criminals. It is a growing problem. Senator Hatch had the chart there. Downward departures went from 1,200 in 1991 to over 4,000 in 2001. There have been some erosions of the clarity of the law about that. In effect, we are at a point of some danger that the integrity of the guidelines would be undermined. So I felt from the beginning we ought to give, in this body, serious consideration to the Feeney amendment and review it and see what we could do about it. That is my general view of that. I served as a Federal prosecutor for almost 15 years. I was a Federal United States Attorney when the sentencing guidelines were passed. I applied them. I carried around the sentencing guideline manual. I could look through and find the upward departures and downward departures and all the statistics and how to figure out how many prior convictions should be considered in the defendant's criminal history. You would figure out the nature of the criminal act, did it involve violence, did the defendant carry a gun, did it involve a particularly vulnerable victim like a woman or a child. You would do all those things. A lot of experienced people in criminal justice came together and put the Sentencing Guidelines together over a decade ago. It was a remarkably good achievement. Most experts who knew about it said basically they were compiling and putting into law what most Federal judges, mainstream Federal judges in America were doing, anyway. But it compromised those who were especially harsh and those who were especially light. Frankly, when you give a lifetime appointment to a Federal judge and he or she decides they don't want to enforce child pornography laws or child abuse laws and they don't think those are particularly significant crimes that ought to be in Federal court and they depart downward, and you are in a position where the law is unclear, they can depart with impunity. If the judge is elected, at least you can vote him out of office sometime, but you can't do that for an unelected, lifetime-appointed judge. For the most part, I think judges follow the guidelines scrupulously. But these statistics on this chart, which shows an almost fourfold increase over a decade in downward departures, are troubling. I served on the Senate Crime Subcommittee. We had hearings in the year 2000 to confront this problem. In fact, we even asked the Sentencing Commission to give us some information on it, but they still have not given us that information. So the Feeney amendment comes along. It was offered in the House of Representatives and it applied to all crimes. They put that amendment on to the AMBER Alert legislation that was going through the House of Representatives, and made it an appropriate part of the PROTECT Act that we would conference about, that we would confer about. I thought it was a matter that ought to be given serious thought. I had not overtly committed to the Feeney amendment, but as someone who worked with the sentencing guidelines, I felt that the intent of it was good. So there was a big controversy. My colleagues on the other side said: Well, we are not going to pass this bill that will protect children. We believe in protecting children, but you can't have the Feeney amendment on it. It is irrelevant to children. It does other things in the criminal justice system, and we are not prepared to vote for that. We are not troubled, in effect, by Federal judges who are downward departing in record numbers. So we don't want that on the PROTECT Act. We got a call from a Federal judge who said: It is restricting my freedom to do what I want to do, and we don't think it is a good idea. Take the Feeney amendment off. Well, Chairman Hatch, who has been in this body a long time, and has been chairman of our committee off and on for a number of years, and Chairman Sensenbrenner in the House, they knew there was a complaint about it. They knew people were unhappy about the Feeney amendment. So they got together and they decided: What could we do about it? And they decided to offer a suggestion and a provision, an amendment that would solve the problem. And I, frankly, am amazed it is having any difficulties getting passed in Congress. What my colleagues on the other side said was: OK, since this is a child protect bill, we will not put in this limitation on downward departures--this legislation that really only tightens up the freedom of judges to abuse the guidelines. We will not do that for all these other cases, but since this is a child act, and we have historical and anecdotal records of child abuse cases where judges have improperly downward departed, we will just apply the Feeney amendment to those cases involving minor victims and sex offenders. Certainly that was very consistent with the intent of the act. It dealt with the situation of some judges not taking these cases seriously. And we had a history of it. The legislation dealt with the problem of repeat offenders because some people seem to think if a person is caught in a child sexual abuse case, and they come in and say, ``Oh, judge, I'm sorry, I won't do it again,'' that you can rely on that. People in churches have heard people say that, and they have believed them. But I have been a prosecutor. I have seen the numbers. I have seen the prosecutions. Most of them have not offended just once or twice, but they have done it several times over a period of years. They come back to it again and again and again. I wish that were not so. I wish it were not so. But you cannot rely on the words of a pedophile, that they are not going to offend again, because history and science and criminal justice statistics show that they go back to these horrible acts again and again, ruining the lives of another child, another child, and another child. It is a big deal in America. It is not a little deal. So the Feeney amendment was really constrained. It did not apply to all criminal justice cases; it applies to sex cases and those involving child and sexual abuse. I would say, as a Federal prosecutor, and knowing the kind of cases that are prosecuted in Federal court--bank fraud, bank robbery, all kinds of white-collar crimes, gun cases, drug cases, international smuggling cases, and all those--I am confident--this may shock some people--I am confident that less than 2 percent--probably less than 1 percent--of the Federal cases prosecuted in Federal court deal with child sexual abuse. Most of them--many of them--are tried in State courts, and the ones that are prosecuted in Federal court are fairly limited in number. So what Senator Hatch, Senator Graham of South Carolina, and Chairman Sensenbrenner offered was a tremendous move in the direction of the opponents who were concerned about the downward departure rule contained in the Feeney amendment. And they focused it simply on this very small but very important number of cases dealing with the abuse, sexual assault, kidnaping and rape of our citizens in America. I think that was a very generous amendment. And I would have thought that would have settled the matter completely. I remain baffled that we would see this kind of opposition, the kind of opposition that would suggest they are willing to kill this important legislation that, if passed, this very day could save the lives of children, could save other children from being abused by a pedophile, if we pass it. And if we don't pass it, if we delay it, the victimization of our children could continue for a long time. And some say: Well, this Feeney amendment is so extreme and so controversial. I suggest not, Mr. Chairman. Looking at the vote in the House of Representatives, when the full Feeney amendment came up, tightening up the ability of judges to downward depart on all the cases in the criminal justice system--the 98 percent plus the 2 percent--the vote was 357 for and 58 against, 1 voting present. Now, that is an overwhelming vote. And then, when the conference report came back, after the Hatch-Sensenbrenner modification was put in, dramatically reducing the number of cases impacted by the Feeney amendment to 2 percent or so, or less--probably 1 percent or less-- involving sexual abuse cases, it passed 400 to 25. So it comes out of the House 400 to 25--overwhelming support from Democrats and Republicans. You have more than 25 liberals, you have liberals and conservatives, Republicans and Democrats voting for this bill in the House of Representatives, overwhelmingly. Yet here we are having this legislation, as critical as it is, being held up over this small amendment, after Chairman Hatch had worked so hard to settle the issue and to accommodate my colleagues on the other side of the aisle. So I think it is important that we understand that. It is important that we pass this bill now. There is no need for it to continue. Who knows? This very day--as a matter of fact I know this just because of the statistics that are out there some child has been sexually abused. Maybe there is a child being kidnaped right now. This legislation could help save that child, and other lives. And I noticed Senator Durbin suggested--and I see Senator Kennedy and Senator Leahy in the Chamber--well, maybe we could talk about having a hearing on the sentencing guidelines and minimum mandatory sentences. I am not opposed to that, but I will just say this: I really care about sentencing guidelines. I think there should be integrity in the enforcement of those guidelines. Federal judges should not get in the habit of eroding the clear injunctions of those acts. And the way they are doing it today, sometimes they are not writing opinions and explaining why they are doing it, leaving it very difficult to determine what has actually occurred, and making it difficult to appeal. So I think we ought to have integrity in sentencing. But we, as a Congress, I say to my colleagues on the floor, passed the guidelines. We set up the mandatory minimums. We created the Sentencing Commission, and we directed them, in large part, on how to carry out sentencing. The Congress has taken over sentencing; that is true. And after these many years of experience with the guidelines, I do not have any doubt that we could improve it, and that we ought to make some improvement. In fact, I would say to my colleagues here, who think some of the sentencing guidelines are too tough--and that is what you hear a lot-- that Senator Hatch and I are the only two Members of this Senate, that I know of, who have taken any action to fix it. We offered the Hatch-Sessions bill last year and are reoffering it this year, that would deal with what I believe to be an unfair circumstance: The crack cocaine/powder cocaine sentencing disparity. I don't believe the extent of the disparity is justified. If you want to complain about something, let's talk about that. Not child pornography, child sexual abuse, not sexual cases. I don't see a problem in the guidelines with those cases. If anything, those sentences need to be toughened up. I do agree, as a person who regularly and consistently prosecuted cases, that we can improve the sentencing disparity on crack and powder cocaine. For every child sex case, there are probably 10 crack and powder cocaine cases going through Federal court. Let's talk about that. I would be willing to talk about that. I also think we should pass the Hatch-Sessions bill first. That legislation takes a major step forward in creating some fairness in the system and deals with the courier case, the girlfriend case. It deals with the sentencing disparity between at some points as much as 100 to 1 between crack and powder cocaine. It narrows that, substantially eliminating the unfairness there. Let's do it that way. Let's not stop this bill. This bill needs to go forward. I understand the concerns about sentencing guidelines in general. How should we fix it? We should fix it by maintaining integrity in the sentencing process, not by standing idly by if judges are violating that process. No. 2, if we carry out our responsibilities, we will look at the act as we pass. We will look at the sentences being imposed in the courtrooms of America and if we were wrong in any of those sentences, we should change them. The one area I am confident we could do better in is the crack and powder cocaine issue. I am prepared to act on that. I have offered legislation that would act on that. It would reduce the crack cocaine sentences significantly. A lot of people don't want to appear to be soft on crime. They don't want to appear to reduce any sentences. But I have been there. I have seen defendant after defendant go off to jail. Several years in a row my office had some of the highest average sentences in America for drug cases. I didn't apologize for that one bit. But if the sentences are not what we need if some, like powder, are not tough enough and need to be increased, and some like crack need to be reduced we should eliminate some of the criticisms about justice in American by being more consistent in how we sentence. That would create more public confidence in the system, and we ought to do that. I am prepared to take the lead on that. In fact, Senator Hatch and I have led on that. We have stepped to the plate and proposed to make progress. I suggest that the PROTECT Act needs to move forward. Chairman Hatch and Chairman Sensenbrenner have done the responsible thing. They have examined the complaints about the Feeney amendment. They have reduced those complaints to an extraordinary degree. They kept this legislation focused on sexual abuse cases, as it should be. We ought to support it. One thing we know is that sexual offenders and predators are repeat offenders. A 1998 study of sexual recidivism factors for child molesters showed that 43 percent of offenders sexually reoffended within a 4-year follow-up period. Almost half of the people arrested as child molesters reoffended in a sexual abuse case within 4 years. I would suggest some of those reoffended and were not caught. There is no doubt in my mind that within 4 years, if this number is accurate, we could say with certainty that over half of those offenders in 4 years reoffended. That is a serious social problem. One thing we put in this bill is important. We put in a provision that would allow lifetime supervision after release from custody or after probation, if that occurs, if the judge feels the defendant poses a danger to society. That is the right thing to do. I am so glad that is in this bill. Senator Hatch and I offered language to that effect. We suggested it last year. The theory behind it is simply this: science and history tell us that child molesters are repeat offenders. Pedophiles reoffend. Do we want to keep them in jail forever? They ought to be kept in jail a long time--no doubt about that in my mind. Should they be kept in jail forever? Very few are kept in jail forever, whether they should be or not. Large numbers of them are released. Under the normal Federal sentencing guidelines, post conviction supervision is 1 to 5 years. So after that 5 years is over, these sexual offenders are not even being supervised by Federal probation officers. It is a rational and logical and just step to give a Federal judge the ability to impose post-release supervision for as long as he or she deems appropriate. That is a good step in the right direction. According to the Bureau of Justice statistics, released rapists were 10.5 times as likely as nonrapists to be rearrested for rape, and those who had served time for sexual assault were 7.5 times more likely as those convicted of any other crime to be rearrested for a new sexual assault. Do you see what that is saying? Those are stunning numbers, when you think about it. They tell us that released rapists are 10 times more likely to rape someone else in the future; that tells us that when you apprehend a rapist, it needs to be taken seriously. We need to understand that a person who has committed rape in the past has a much, much greater potential for raping another innocent human being in the future or for molesting another child in the future. That is why Federal supervision can be helpful there. Good Federal probation officers work hard. They stay on top of offenders. Perhaps they can identify circumstances when offenders may be getting in trouble or acting in an unhealthy way, to make sure that the jobs sexual offenders take do not place them in contact with children. Perhaps probation officers can otherwise monitor offenders' activities to substantially reduce the likelihood that they would reoffend. I thank Senator Hatch for his leadership. We thought we had an agreement with Senators Leahy and Kennedy and others to move this bill forward. Unfortunately, we are not moving forward at this moment. I hope we can break the logjam so that this important legislation will go forward to final passage. I thank the Chair and yield the floor.