Jeff Sessions

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I thank the distinguished Senator from Illinois. He did a good amount of work. He worked hard on this bill in committee. He worked hard on it to the very end. He was a champion of it in the committee. It came out of our committee by a 17-to-2 vote. It passed in the Senate with only one negative vote. Then we went into conference with the House. I am convinced that the bill is better today after having been be in conference than it was before it left, even though I had to give up some things that I favored. I certainly agree with the idea that this homestead situation, where millionaires move off, buy mansions, and then declare bankruptcy, is a scandal. But I am telling you, I was amazed how many Senators from States who have those homestead exemptions, mistakenly in my view, felt very strongly that this somehow abrogated their State law, their State constitutions. Their opposition, as Senator Grassley knows, jeopardized the ability of the bill to pass. We made some modest progress towards restraining this abuse. Senator Grassley said he was prepared to let us take it up again next year and see what we could do then. But in order to move the bill, we made some progress rather than no progress on this issue. I certainly believe we can do better. This bill passed the House with 300 affirmative votes; 75 Democrats supported it. I really do not agree with the assertions that this is not good bipartisan legislation. It really hurts me to hear the Senator say that this bill guts the protections that were in the Senate version. This bill institutes protections for debtors, but it does set some standards in bankruptcy. It will not let an individual come in and wipe out all of their debt without any explanation or any justification for it. They have to justify that they need this radical protection. With regard to the question of fairness, we have been on this bill for years now. Senator Grassley has met and met and met. He worked very hard and had the bipartisan support of his Senate Judiciary Committee and his subcommittee on this bill. Senator Durbin is the ranking member of it. The staff on Sunday met for 7 hours. They met 10 hours with the Democratic staff between Sunday and Wednesday of this week discussing this bill. They were asked to sign the conference report and they chose not to. Those of us who supported the bill signed it. The Democrats refused to do so. Obviously, at some point, they made a decision they were going to object to this bill. I don't believe the majority of the Senators want to do that in either party. It came out of this body and the other body with overwhelming support. It is stunning to me. I know there is a campaign theme about this ``do-nothing Congress.'' The President has been suggesting that. This is a good historic piece of legislation. We haven't made a major improvement bankruptcy laws since 1978. A lot of work has gone into this reform. This is major legislation setting forth major progress. And, all of a sudden now, at the last minute, all of the objections come up. I suppose they will accuse us of not being able too pass the bankruptcy legislation. But I want to say this: I think some people who killed this bill are going to have to answer why. I don't believe it is going to be a satisfactory explanation to say that they voted against it because it prohibited trial lawyers from bringing a bunch of class actions. Only within the area of a finite part of the bankruptcy law are class actions prohibited. That is almost an insignificant part of this bill. And to raise that now and suggest it is a basis to oppose this bill suggests to me just how good a bill it is, if that is all they can find to fuss about. Maybe this suggests that it is trial lawyers making the phone calls and stirring up the opposition. It really is frustrating to see a man of the ability, the patience and the integrity of Senator Grassley bring this bill up with the great support he had from both parties and see it now being jeopardized by a Presidential veto. I would hate for that to happen. I believe when the President actually studies this bill carefully, he is going to conclude ti is a historic improvement over the present law, that he cannot justify not signing it, that it will be good for America and that he will sign it. I certainly hope that is true. Let me mention a couple of things about the bill. We have several pages of restrictions on credit. There is a whole section of this bill entitled ``Enhanced Disclosures on the Open End Credit Plan.'' We went into credit cards and some of that stuff, but this is not a banking bill. This is not a credit card bill. This is a bill to improve bankruptcy, not credit cards. Attaching and raising all those issues is something that ought to be done by the Banking Committee. But we included some restrictions, a number of restrictions, and we put in this bill a study required to be done by the Federal Reserve Board to help us develop a way to control any abuses in the credit card industry. I think it will be a step forward. This is a not a stonewall. Here at the last minute we don't have to be creating movement from bankruptcy to credit cards. I feel strongly about that. Let me just mention a couple of things the bill does. It, for the first time, states that if you have plenty of money to pay back a lot of your debts, you ought to do so. So if you can pay back 50 percent, 70 percent of your debts, you ought to go into chapter 13. The court will protect you from lawsuits and creditors, and you set up a payment plan and you can pay back those creditors a portion of what you owe if you have sufficient income. Now, the standard used for income is the national median income for a family of four. This means that the person would have to make over $50,000 a year to be required to pay any back. If they make less than that, they can stay in the chapter 7 and wipe out all of their debts. So I don't think the standard is very high at all. But people who are wealthy, have money, ought to pay back some of their debts. And many of them can pay all of their debts back. That is the historic step. It is only fair. And it is just not moral to allow people to not pay their just debts when they are capable of doing so. I see the distinguished chairman of the Senate Judiciary Committee has come in the Chamber. I have a couple of minutes remaining. I will be delighted to yield for any comments he has. He has been a strong leader in this legislation. I yield the floor. Mr. HATCH addressed the Chair. the PRESIDING OFFICER. the Senator from Utah is recognized.

Mr. SESSIONS

Mr. SESSIONS. I yield up to 10 minutes to the distinguished Senator from Ohio.

Mr. SESSIONS. Mr. President, I think that was an unkind comment. I don't believe he is the right person for this circuit, and I object to his nomination. I yield the floor.

Mr. SESSIONS. Mr. President, there have been several speakers, including the Senator from Ohio and the Senator from Missouri, who have talked about the unique circumstances that are at foot here in dealing with the Ninth Circuit, and that we have a responsibility and a duty to make sure that we use our advise and consent authority wisely to improve the courts in America, and the Ninth Circuit is in need of, severe need of reform. It has been reversed in nearly 90 percent of its cases in the last 2 years--an unprecedented record that no circuit, to my knowledge, has even been suggested to have approached. The New York Times has referred to the Ninth Circuit Court of Appeals--which includes California and most of the west coast--and they said that a majority of the Supreme Court considers the Ninth Circuit a rogue circuit. Now, some Senators suggest this is politics. Mr. President, I was elected by the people of my State to come here, and one of my duties is to evaluate Federal judges. I have affirmed and voted for the overwhelming majority of the Clinton nominees. I am willing to vote on this one. I have agreed to this nomination to come up and be voted on. But I want to have my say. I am concerned about this. I don't think that is politics. As a matter of fact, let me quote to you from an article that Mr. Fletcher, the nominee, wrote a few years ago referring to the confirmation process involving Justice Clarence Thomas. What he said about the role of the Senate was this: Does the Senate have the political will-- That is us, me-- to come down here and do the unpleasant duty of standing up and-- And talk about a gentleman who is charming, I am sure, and a nice fellow-- talking about the unpleasant fact that he may not be the right nominee for the court? He said: Does the Senate have the political will to insist that its constitutional advise and consent role become a working reality? Mr. President, I have been here 2 years. One nominee withdrew before a vote, and we hadn't voted on any nominees. So we are not abusing our advise and consent power. As a matter of fact, I don't think we have been aggressive enough in utilizing it to ensure that the nominees to the Federal bench are mainstream nominees. That is what we are talking about. He said, ``The Senate must be prepared to persuade. . . .'' This is Mr. Fletcher, who wrote this article. He is an academic, a professor, so he can sit around and find time to write these articles. We are not dealing with a proven practitioner, a person who served as a State or Federal judge, as we normally have. We are dealing with a nominee who has never practiced law in his life, has never tried a lawsuit, has never been in court and had to answer to a judge. Yet, he is going to be superintending the largest Federal circuit in the country. This is what he wrote: The Senate must be prepared to persuade the public that an insistence on full participation in choosing judges is not a usurpation of power. That is all we are doing. We are telling the President of the United States--and it is going to get more serious with additional nominees to this circuit--that we have to have some mainstream nominees. We have to do something about the Ninth Circuit, where 27 out of 28 cases were reversed in the term before last, and 13 out of 17 were reversed in the last term. That has been going on for 15 or 20 years. It is not even a secret problem anymore. It is an open, acknowledged problem in American jurisprudence. The U.S. Supreme Court is trying to maintain uniformity of the law. For example, this summer, the Ninth Circuit was the only circuit to rule that the Prison Litigation Reform Act--passed here to improve some of the horrendous problems we were having with litigation by prisoners--was unconstitutional. Every other circuit that addressed the issue upheld the constitutionality of this act, including the First, Fourth, Sixth, Eighth, and Eleventh Circuit have affirmed the constitutionality of the Prison Litigation Reform Act. But not the Ninth Circuit. It is out there again. As a matter of fact, I have learned that they utilize an extraordinary amount of funds of the taxpayers on defense of criminal cases. In fact, they have approved one-half of the fees for court- appointed counsel in the entire United States. There are 11 circuits in America. This one is the biggest, but certainly not more than 20, 25 percent of the country--probably less than that. They did half of the court-appointed attorney's fees because they are turning criminal cases into prolonged processes where there is no finality in the judgment--a problem that America is coming to grips with, the Supreme Court is coming to grips with, and the people of this country are coming to grips with. That is just an example of what it means to have a problem there. Mr. President, I will just say this: This nominee was a law clerk, in addition to never having practiced, and he clerked for Justice Brennan, who was widely recognized as the epitome of judicial activism. His mother is on this court today, the Ninth Circuit, and she is recognized as the most liberal member of the court. Perhaps one other is more liberal. It is a problem we have to deal with. I would like to mention this. In talking about the confirmation process, he made some unkind and unwise comments about Justice Thomas in a 1991 article. He questioned, I think fundamentally, the integrity of Justice Thomas. What kind of standard do we need to apply here? He believed a very high standard. This is what he said: Judge Clarence Thomas did have a record, although not distinguished enough to merit President Bush's accolades. But Thomas backed away from that record, pretending he meant none of what he had written, and said that he never talked about Roe v. Wade with anyone and, of course, he didn't talk dirty to Anita Hill either.

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

Mr. SESSIONS. Mr. President, I want to share some thoughts with you about judicial activism. In 1982, Mr. Fletcher wrote an article entitled ``The Discretionary Constitution.'' He was a professor then. It has been interpreted by many as a blatant approval of judicial activism. He discusses institutional suits. I was attorney general of the State of Alabama and I had to deal with Federal judges who have major court orders dominating the prison system. Most States have prison systems under court order, having Federal judges ruling those, and mental health systems and school funding issues are decided by Federal judges. So he wrote about that and other issues. In that article, this is what he said, and it really troubles me: The only legitimate basis for a Federal judge to take over the political function in devising or choosing a remedy in an institutional suit is a demonstrated unwillingness or incapacity of the political body. I want you to think about that. That is a revealing quote, that, well, the only way you can do it is if the institution demonstrates an unwillingness or incapacity to act. That is the rationale of the liberal activist. What they say is, well, the State of Alabama didn't provide enough gruel for the criminals, so we are going to issue an order and tell them what they have to feed them three times a day. Or we are going to have a law library for every prison, and they have to have so many square feet. Or you have to spend so much money on education; you have to change your whole way of funding education in your State. Why? Because the State would not act. Now, we live in a democracy. In a democracy, the people rule; they decide what they want to do. I know the distinguished Senator in the Chair, Mr. Ashcroft, shares this view. I have heard him express it. I think these are his exact words: ``When the legislature does not act, that is a decision.'' When they go into session, they decide to act on matters or not act on them, and not acting is an action, a decision not to act. The people have influence with that because they elect their representatives and, if they are not happy, they can remove them from office. But you can't remove a Federal judge because he has a lifetime appointment. He cannot be removed, except for the most serious personal abuses of office. Normally, making bad decisions is not one of those. I will just say this. We have a circuit that is in trouble. It is considered by a majority of the Supreme Court to be a rogue circuit. We need to put nominees on this circuit and move it back into the mainstream and not continue it out on the left wing. We have a responsibility to assure that the judges we confirm are going to improve the courts, and I think we need to vote ``no'' on this nomination because I don't believe it will take us back in the direction we need to go. I think it will take us in the wrong direction. Mr. President, I yield the floor. Mr. HATCH addressed the Chair.

Mr. SESSIONS. Mr. President, the role of the Senate is to advise and consent in nominations by the President for judicial vacancies. That is understood in the Constitution. Every nominee of the President comes before the Judiciary Committee and then they come before this body for a vote. We are at this point analyzing the nomination of William Fletcher, Willie Fletcher from California, to the Ninth Circuit. I regretfully must say I have concluded that I have to oppose that nomination. And I would like to discuss the reasons why. Most of the nominations that have come forward from the President have received favorable review by the Judiciary Committee. In fact, we cleared nine today. A number of them are on the docket today and will probably pass out today. So we are making some substantial progress. Nearly half of the vacancies that exist now in Federal courts are because there are no nominees for those vacancies--almost half of them. But on occasion we need to stand up as a Senate and affirm certain facts about our courts and our Nation. One of the facts that we need to affirm is that courts must carry out the rule of law, that they are not there to make law. The courts are there to enforce law as written by the Congress and as written by the people through their Constitution that we adopted over 200 years ago. Also, that is, I think, where we are basically today. With regard to this nomination, it is to the Ninth Circuit Court of Appeals in California. Without any doubt, the Ninth Circuit is considered the most liberal circuit in the United States. It is also the largest circuit. There are 11 circuit courts of appeals. And in the United States we have the U.S. district judges. These are the trial judges. The next level--the only intermediate level--is the courts of appeals. And they are one step below the U.S. Supreme Court. It is the courts of appeals that superintend, day after day, the activities of the district judges who practice under them. There are more district judges in the circuit than there are circuit judges. And every appeal from a district judge's ruling, almost virtually every one, would go to the courts of appeals in California and Arizona and the States in the West that are part of the Ninth Circuit. Those appeals go to the Ninth Circuit, not directly to the U.S. Supreme Court. As they rule on those matters, they set certain policy within the circuit. We have--I think Senator Biden made a speech on it once--we have 1 Constitution in this country, not 11. The circuit courts of appeals are required to show fidelity to the Supreme Court and to the Constitution. The Supreme Court is the ultimate definer of the Constitution. And the courts of appeals must take the rulings of the Supreme Court and interpret them and apply them directly to their judges who work under them or in their circuit and in fact set the standards of the law. We do not have 11 different circuits setting 11 different policies-- at least we should not. But it is a known fact that the Ninth Circuit for many years has been out of step. Last year, 28 cases from the Ninth Circuit made it to the U.S. Supreme Court. The Supreme Court does not hear every case. This is why the circuits are so important. Probably 95 percent of the cases decided by the circuits never are appealed to the Supreme Court. The Supreme Court will not hear them. But they agreed to hear 28 cases from the Ninth Circuit. And of those 28 cases, they reversed 27 of them. They reversed an unprecedented number. They reversed the Ninth Circuit 27 out of the 28 times they reviewed a case from that circuit. And this is not a matter of recent phenomena. I was a Federal prosecutor for almost 15 years, and during that time I was involved in many criminal cases. And you study the law, and you seek out cases where you can find them. Well, it was quite obvious--and Federal prosecutors all over the country used to joke about the fact that the criminal defense lawyers, whenever they could not find any law from anywhere else, they could always find a Ninth Circuit case that was favorable to the defendant. And they were constantly, even in those days, being reversed by the U.S. Supreme Court, because the U.S. Supreme Court's idea and demand is that we have one Constitution, that the law be applied uniformly. So I just say this. The New York Times, not too many months ago, wrote an article about the Ninth Circuit and said these words: ``A majority of the U.S. Supreme Court considers the Ninth Circuit a rogue circuit, out of control. It needs to be brought back into control. They have been working on it for years but have not been able to do so.'' All of that is sort of the background that we are dealing with today. When we get a nominee to this circuit, I believe this Senate ought to utilize its advise and consent authority, constitutional duty, to ensure that the nominees to it bring that circuit from being a rogue circuit back into the mainstream of American law, so we do not have litigants time and again having adverse rulings, that they have to go to the Supreme Court--however many thousands and hundreds of thousands of dollars--to get reversed. This is serious business. Some say, ``They just reversed them. Big deal.'' It costs somebody a lot of money, and a lot of cases that were wrong in that circuit were never accepted by the Supreme Court and were never reversed. The Supreme Court can't hear every case that comes out of every circuit. So we are dealing with a very serious matter. The Senator from Ohio who I suspect will comment today on the nominee, Senator DeWine, articulated it well. When we evaluate nominees, we have to ask ourselves what will be the impact of that nomination on the court and the overall situation. We want to support the President. We support the President time and again. I have seen some Presidential nominees that are good nominees. I am proud to support them. There are two here today who I know personally that I think would be good Federal judges. But I can't say that about this one. We need to send the President of the United States a message, that those Members of this body who participate in helping select nominees cannot, in good conscience, continue to accept nominations to this circuit who are not going to make it better and bring it back into the mainstream of American law. With regard to Mr. Fletcher, he has never practiced law. The only real experience he has had outside of being a professor, was as a law clerk. His clerkship was for Justice William Brennan of the U.S. Supreme Court. That is significant and it is an honor to be selected to be a law clerk for the Supreme Court. But the truth is, Justice Brennan has always been recognized as the point man, the leading spokesman in American juris prudence for an activist judiciary. I am not saying he is a bad man, but that is his position. Justice Brennan used to dissent on every death penalty case, saying he adhered to the view that the death penalty was cruel and unusual punishment, and within that very Constitution he said he was interpreting, there are at least four to six references to the death penalty and capital crimes. The Founding Fathers who wrote that Constitution never dreamed that anyone would say that a prohibition of cruel and unusual punishment would prohibit the death penalty, because the death penalty was in every State and colony in the United States at the time the Constitution was adopted. It never crossed their minds. This is an example of judicial activism when Justice Brennan would conclude that he could reinterpret the Constitution and what the people contracted with their Government when they ratified it. It says, ``We, the people, ordain and establish this Constitution. . ..'' So they adopt it; it is reinterpreted. That is a classic definition of judicial activism. We know Mr. Fletcher was his law clerk and has written a law review article referring to Justice Brennan as a national treasure. It is obvious he considers him an outstanding judge and a man he would tend to emulate. Of course, judicial activism is part of his family. One of the problems, and the Presiding Officer has attempted to deal with it through legislation, and was successful. Just today, I believe, we have passed legislation dealing with nepotism, two family members serving on the same court. The truth is, Mr. Fletcher's mother is a judge on the Ninth Circuit already. Of the judges in the United States, I am sure she would be viewed as one of the most activist--in the Ninth Circuit, it is common knowledge she is one of the most activist nominee members of that court. It doesn't mean he will be, but he is connected to Justice Brennan, and his mother is a very liberal, an activist, and will remain on the court as a senior judge and will have the opportunity to participate in a substantial number of the opinions that are rendered by the Ninth Circuit, because they have three-judge panels who assign these cases out of the judges there and they often put these judges on a panel. If she takes senior status, which I understand she has agreed to do, she would not resign from the bench but take senior status and still be able to handle a substantial caseload. That is a troubling fact to me. To me, a judge is a very important position at any level of the courts. This is not an absolute disqualifying factor to me, but it is a very important factor to me, and that is that Mr. Fletcher lacks any private practice experience. Mr. Fletcher has never practiced law. Mr. Fletcher has never tried a lawsuit. He has been a law clerk for William Brennan and a professor at the University of California Law School. He has never been in the courtroom as a litigant. He has never had the opportunity to have that knot in your stomach when a judge is about to rule on a motion, to understand the difficulties in dealing with human nature. He has not had that experience. Having had 15 years of full-time litigation experience in Federal court trying cases, you learn things intuitively. Supreme Court justices and appellate court justices will be better judges if they have had that experience. It is an odd thing, and not a healthy thing, normally; it takes extraordinary and exceptional circumstances, in my opinion, to conclude that someone who has been nothing but a law professor all their life is now qualified to take a lifetime appointment to review the decisions of perhaps 100 or more trial judges in their district who are working long and hard, for whom he has never had the opportunity to practice before and see what it is like. That is not a good thing in itself. That is another reason I have serious reservations about this nominee. Certainly Mr. Fletcher has a right to speak out, but in 1994, not too many years ago, he made a speech in which he criticized the ``three strikes'' law legislation, the criminal law changes that have swept the country, calling it ``perfectly dreadful legislation.'' He has never been a prosecutor. He has never been a judge. He has never been a lawyer. Here he is saying this about this legislation, which I believe is widely supported throughout the country. In my opinion, it has helped reduce the rise in crime, because ``three strikes and you are out'' focuses on repeat, habitual offenders. Make no mistake, somebody will say, ``You will have everybody in jail, Jeff.'' Not so; everybody is not a repeat, three-time felony offender. If you focus on the repeat offender, those are the ones committing a disproportionate percentage of crime. We have done a better job on that in the last 10 or 15 years. We have tough Federal laws dealing with repeat offenders. States have implemented ``three strike'' laws and it has helped draw down the rise in crime. As a matter of fact, crime has been dropping after going up for many years because we got tough and identified the repeat offenders and prosecuted them successfully and States have stepped up to the plate and done so. He criticized that. That gives me a real insight into his view about criminal law, and here he will be presiding over reviewing cases of trials involving murderers and other criminals in the Ninth Circuit and he has never had any experience. The only thing we know about him is that he considers good, tough law legislation dreadful. (Mr. ASHCROFT assumed the Chair.)

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I ask unanimous consent to speak as if in morning business for approximately 10 minutes.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I just had the opportunity to hear the remarks of the distinguished Senator from Michigan concerning the independent counsel. I must say that those remarks are troubling to me and I do not believe contribute to really the kind of bipartisan effort that we need to make here in this body with regard to the delicate problem of the President's troubles. It was raised under the pretension or the suggestion as part of an evaluation of the independent counsel but really amounted to, I think, an unfair restatement of many charges that have been made against the independent counsel, most of which I believe have already been answered, or could be answered pretty easily. I served as a prosecutor for a number of years, and I would like just to share some thoughts. I prosecuted a number of government officials. And it was my experience during that process that government officials, more than any other person I had the occasion to investigate, were the most aggressive and most impossible to the prosecutor. It is part of their team effort with their attorneys to attack the person who is out speaking the truth. It is not an easy job for this independent counsel to obtain the truth. These officials don't want it out. It is not their choice. It is not their preference, or their desire, that what they may have done is revealed, particularly if what they have done may involve perjury or some illegality. So it is not an easy thing to do. And when the independent counsel was charged with going out and finding the truth, he faced a systematic effort to obfuscate that truth. I wish it weren't so, but that is what appears to be. So now when we get through this process--it took several years to finally get this information that we now have--we have Members of the other party wanting to come in here and attack the man who ultimately produced what appears to be the truth. At least I have not heard it substantially disputed. And he submitted a report. They said, ``Oh, well.'' Judge Sirica, he said, wanted to review the grand jury testimony. That was before the independent counsel law. That was an unprecedented thing, I suppose, for Judge Sirica to report grand jury testimony. There was no law. But now, under the independent counsel law, the independent counsel is required to submit the information that he finds to the Congress, to the House of Representatives. That is what his duty was--to find out the truth and to submit it. And it was not easy to find the truth. It often is not. It was particularly difficult with the clever people he was dealing with in this instance. So it just disturbs me, I must say. And if it is true, if he has so violated his oath, the Attorney General can remove him from office. If she has a basis for it, she ought to do it. And she will not be criticized by this Senator. So they say, ``Well, his duty is to prosecute fairly.'' Well, you don't prosecute until you get the truth. You don't prosecute until you get the facts. And his responsibility was to find those facts. They say graphic details were not necessary. Well, I am glad that we have some fastidious concern. I think we do have too much unhealthy sex and stuff in this country today. But we have a denial. We had a suggestion that, ``What I did was not really sex.'' So I suppose the details of what the President may have done are relevant to whether or not he had sex or not, and I am certain that is why the independent counsel felt it was his obligation to do so. And his goal is to report that information. They say, ``Well, he shouldn't have suggested in his report that the President lied under oath.'' That is one of the words that was said he used. But he was required to report on matters that may lead to impeachment charges. So by nature his summary report was his opinion as to whether or not there was evidence accumulated sufficient to lead to impeachment. He is required to give his opinion and his summary of the evidence as to whether or not it required impeachment, and he concluded, based on all the studies, that the President lied under oath, apparently, and he put that in his report. I submit he was required to do so. Oh, they say, you didn't get all the exculpatory evidence, that that didn't all come out, and that she said, Miss Lewinsky said, ``No one ever asked me to lie.'' Well, I am not sure and therefore--but from what I read in the report, it would suggest to me that the Starr report didn't say anybody ever said she was asked to lie. The Starr report simply said that there were circumstances that led to that, apparently. But it did not use those words and he would not have been required to put forth her statement in that regard. So Judge Sirica's circumstances are not quite the same, is all I am saying. And I respect the distinguished Senator and his comments and his concern, and we ought to hold every public official accountable. We ought to scrutinize all of our behavior here and we ought to be prepared to stand the heat. I am sure Mr. Starr has got to stand the heat like everybody else if he is going to be in the kitchen. If you recall, we have a word in the criminal lexicon today called ``Sirica.'' And what happened was, if you will recall, some of those burglars who said, oh, this is just a two-bit burglary--do you remember that? Judge Sirica gave them the maximum sentence, the maximum ``John,'' and that is when they testified. So I am sure these things are tough for Miss Lewinsky or anyone else. She had a choice whether she was going to cooperate and tell the truth or continue to hold fast to her previous story, and it does appear that she did for a while adhere to one story and then changed it. So I don't believe the independent counsel has placed himself above the law. I don't believe he has abused his office. And I don't believe most of the other complaints that have been made about the independent counsel, once the full facts are out, are going to suggest any problems. No doubt, there are so many complex rules over the period of an investigation, somebody will say you should have done this under this circumstance and you should not have done this under that circumstance. Normally what happens is any evidence obtained from an improper source gets excluded from the trial and can't be used, but it doesn't undermine the overall integrity of the investigation if that was obtained properly. So I don't know what the end of this will all be. It would please me if things get settled and that is the end of it and this body isn't involved. I don't think we need to be debating these issues on this floor, and the only reason I have spoken on this floor fundamentally is because others have made statements related to those issues, so I felt I ought to suggest there might be another interpretation that could be given to those issues. So, to me, the issues are complex. The House is dealing with this matter. Let's let the House deal with it. Let's try to make sure we have a bipartisan effort, or a nonpartisan effort, that no partisanship should be involved in this. Let's let the process work its way. My understanding of the reputation of Judge Starr is it is very good, and it remains to be seen whether he committed any error. If he did, that will come out. That does not undermine the basic facts we are dealing with here. Mr. President, I thank this body for allowing me to make these comments. I have some other things I could say but I will not. I just believe that we need to be careful. Let's let the House do their business. They have had votes over there. It is their business, not our business. And I think we would be better off if we left it there. I thank you. I yield the floor. Mr. BYRD addressed the Chair.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I wish to express my sincere appreciation and admiration for the distinguished Senator from Indiana. The Senator from Indiana has set a standard and an example in this body of what it means to be a Senator, what it means to be a decent Christian gentleman, the likes of which I do not think have been surpassed in my experience here. I have had the honor of calling him friend. I have had the opportunity to serve or participate with him in a prayer breakfast that he leads. He sets the kind of example of good public service that all of us ought to seek to emulate. And I am delighted that he has played an important role in this piece of legislation, as he has in so many others. And it will be, I am sure, successfully pursued.

Mr. SESSIONS

Mr. SESSIONS. I ask unanimous consent that the bill be considered read a third time and passed, as amended, the motion to reconsider be laid upon the table, and that any statements relating to the bill appear at the appropriate place in the Record.

Mr. SESSIONS. Mr. President, Senator Gorton has a substitute amendment at the desk, and I ask for its consideration.

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

Mr. SESSIONS. Mr. President, I ask unanimous consent that the amendments be agreed to.

Mr. SESSIONS. Mr. President, I yield the floor.

Mr. SESSIONS. Mr. President, Senators Levin and Feinstein have an amendment to the amendment at the desk, and I ask for its consideration.

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

Mr. SESSIONS. Mr. President, I ask unanimous consent that the Senate now proceed to the consideration of calendar No. 495, S. 852.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Friday, October 2, 1998, at 10:00 a.m., 11:00 a.m. and 2:00 p.m. to hold three hearings.

Mr. SESSIONS. Mr. President, I ask unanimous consent on behalf of the Governmental Affairs Committee to meet on Friday, October 2, 1998, at 9:00 a.m. for a hearing on the nominations of John Sepulveda, to be Deputy Director of the Office of Personnel Management, and Joseph Swerdzewski, to be General Counsel of the Federal Labor Relations Authority.

Mr. SESSIONS. Mr. President, I ask unanimous consent that the full Committee on Environment and Public Works be granted permission to meet to consider pending business Friday, October 2, 1998, at 9:30 a.m., Hearing Room (SD-406).

Mr. SESSIONS. Mr. President, I ask unanimous consent that the Special Committee on the Year 2000 Technology Problem be permitted to meet on October 2, 1998 at 9:30 a.m. for the purpose of conducting a hearing.

Mr. SESSIONS. Mr. President, I ask unanimous consent that the Subcommittee on Antitrust, Business Rights, and Competition, of the Senate Judiciary Committee, be authorized to meet during the session of the Senate on Friday, October 2, 1998, at 10:00 a.m. to hold a hearing in room 226, Senate Dirksen Office Building, on: ``International Antitrust Enforcement: How Well Is It Working?''

Mr. SESSIONS

Mr. SESSIONS. Mr. President, on another subject, and the primary purpose of my being here this afternoon is to talk about the issue of tritium. It was a much debated issue in the Armed Services Committee bill. I thank the chairman of the Senate Armed Services Committee, Senator Strom Thurmond, for his outstanding leadership, his commitment to this country and his dedication to America. He, at age 40, volunteered to fight--he was a judge--he forced his way into World War II, went off to Europe and volunteered on D-Day not just to land, he volunteered to get in one of the glider planes that they pulled up and let go and flew over the enemy lines and landed who knows where, in Belgium or somewhere near, to form commando groups to assist in the invasion effort. Senator Thurmond recounted, when they asked him how rough the landing was, ``Well, I'll just say you didn't have to open the door, you could just walk out the side of the plane.'' It is kind of hard to land one of those things in hedgerows and who knows what else when they are coming down. He served his country. I asked him, ``What happened after the surrender of Germany? Were you there all the way to the surrender, Strom?'' He said, ``Yes,'' he was there until the day of the surrender, and then he was put on a train and sent to the Pacific, but Japan surrendered before he reached the battlefront in the Pacific. He is a true patriot and has done an outstanding job on this entire defense bill--the Strom Thurmond National Defense Authorization Act. I do appreciate his willingness to work with us as we endeavored to reach a compromise on the question of tritium. There was a colloquy on the floor of this body yesterday between Senator Warner, Senator Kyl and Senator Robert Smith. Due to Hurricane Georges ravaging my hometown of Mobile, AL, I was not able to be here. But I appreciate Senator Warner's expressed concern for the people of our State during that colloquy. I would like to make a few comments, since I was not able to be here at that time. First and foremost, tritium is an essential element for maintaining the safety, security and reliability of a national nuclear weapons stockpile. Without it, as Senator Jon Kyl alluded to yesterday, we place our ability to meet our stockpile needs under the START I treaty, by 2005, in a precarious situation. Therefore, regardless of how passionate we may become in debating the merits of the options on this issue, let there be no doubt that the core of this discussion lies in the U.S. national interests. And we cannot compromise that issue. We cannot compromise the national security interests of the United States. For the last several years, the Department of Energy has been pursuing a dual-track strategy in considering two technologies for tritium production: One is a commercial light water reactor and the other a proton accelerator. I firmly believe it was premature for the House of Representatives to engage in a political effort that would have eliminated one of those options; that is, the commercial light water reactor option. I personally believe that the commercial light water reactor option would be the most cost-effective and is the most proven way to produce tritium. So, we will have that debate coming up next year. We will go into some detail about it. But beyond my own personal belief in the commercial light water reactor option, I continue to be committed to the support of the role that the experts at the Department of Energy and the Department of Defense must have to select the best option. We have had a process that has been going on for 2 years to have them analyze the options and make a selection. I believe they are better suited to deal with these technological questions than are Members of the House and the Senate. So I worked hard, along with Senator Shelby and Congressman Robert Aderholt and Bob Riley and Bud Cramer, and other Senate and House colleagues with the Senate Armed Services Committee and the House National Security Committee on this issue. We did what we could to raise the issue. We let everyone who would listen know we were making a mistake to allow the politics of the moment rule the day. The amendment to eliminate the commerical light water reactor option was never debated in the House, but was attached to a large defense bill, and boom, passed. There was no discussion or debate on a measure that interrupted and abrogated the almost 2 years of study on tritium production by the Department of Energy. There has been a lot of discussion about it. We concluded, according to recent CBO studies--that the accelerator option would cost between $4 billion and $13 billion more than the commercial light water reactor. That is a lot of money. We do not have $4, $5, $6, $7 billion or more to waste on that process. So we have not had the final decision. The Department of Energy is analyzing it. They need to be allowed to complete their analysis. And that is what I believe was achieved in this bill. The process was allowed to continue. It was delayed somewhat, but I do not think it was delayed too long. But the Department of Energy will make its decision. And next year I suppose we will make our decision in this body, and then in the other body, as to how tritium should be produced and in what process. So I am pleased that we have reached this accord. Senator Lott stated yesterday that ``we cannot afford to delay this program.'' I cannot agree more. And I hope this message is understood as we go forward to reaching a final solution on the production of tritium, an essential component for our nuclear arsenal. In June, I entered a number of letters in the Congressional Record on this issue. We had letters from the Secretary of Defense, Secretary Cohen, and from the then Secretary of Energy, Secretary Pena, and the White House--all expressing grave concern about a political decision on a scientific, technical and defense issue. And Senator Carl Levin, my good friend from Michigan, was very strong in resisting this effort that had begun in the House of Representatives. So we now find ourselves on the right path again. Secretary Richardson needs to move forward deliberately and aggressively in selecting the proper option. The Department's implementation plan must be submitted early next year and should be carefully considered by this body, thoroughly debated and swiftly acted upon. The majority leader, Trent Lott, and others have indicated they will be thoroughly engaged in the debate when it comes. This is the next and logical step in the tritium story. Its outcome will provide a roadmap to a future guarantee for our Nation's security. I plan to be engaged in that important debate. I encourage my colleagues to do so as well. I thank the Chair.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I had the opportunity a few moments ago to hear the distinguished Senator from Delaware talk about his views and his analysis and his historical perspective from his extensive research on the question of impeachment. I found it instructive, full of much good insight and food for thought, and I agreed with the vast majority of it. We ought to be respectful and responsive as we go through this process. It may be that it will never even get to this body. I certainly don't hear many Senators making speeches about it. We don't have any hearings going on in this body concerning impeachment. It is solely a decision to be made by the House first, and only then would we begin to focus on it. And I think that is the way it should be. So far as I can tell, our attention in this body, the U.S. Senate, has in fact been on appropriations bills and other legislation that is important for the American people, and I am glad that is what has been happening. I agree that the founders were concerned about the abuse of the impeachment process, and well they should be. They were wise people. They knew there were dangers and they discussed whether or not to have impeachment. But the important thing is they did adopt an impeachment process and they set it forth in the Constitution with good clarity, and it requires a majority vote in the House to impeach and a two- thirds vote of the sitting Members of the U.S. Senate, with the Chief Justice of the Supreme Court presiding, I assume in the President's chair. He would preside and manage the action on the floor. It would be a controlled environment with the case being presented by managers from the House following the historical rules of procedure. I believe impeachment proceedings would be handled in a dignified and proper manner. Certainly, that process is part of our Constitution and it is something we ought not to treat lightly. Now, as to the question of politics, I, and I think every Member of this body, would be careful and very diligent to ensure that any decision they made concerning such a momentous subject as impeachment would be made on the law, on the facts, and on what is fair and just. I do not believe politics will control this process, but, of course, to get the 67 votes, the necessary two-thirds, a substantial number of Democrats would have to vote for conviction before such an event could occur. So I think the framers thought it out carefully, and they have done a very good job in planning it out. I hope that we do not talk politics in such a way that we create a political situation. I know the House is dealing with procedure: Some want to do it this way; some want to do it that way and some want to do it another way. Often these are legitimate debates. Who knows precisely how some of these procedural steps should be accomplished? Now, if every time you lose a vote you say it is politics and accuse the other side of politics, the charge of playing politics can be thrown back on the person making the accusation. I think both groups--the people who are supporting the President and want to see him succeed, and those who are politically opposed to him-- both need to be careful to ensure that what they do is fair and is perceived as creating a positive environment, as was done by Senator Howard Baker during Watergate. He didn't always agree with everyone, but he conducted himself in a way that brought respect to the system. I think both parties, the Republican and the Democratic Parties, and Members of the House and Senate need to be careful about how we conduct ourselves and avoid politics and try to decide these matters on what is right and fair and just. I don't know what others might say, but I was a Federal prosecutor. I had the opportunity over the years to be before grand juries hundreds of times. Perhaps, I have presented a thousand cases to a grand jury. I have seen people testify and tell the truth at great pain to themselves. I would agree with Senator Biden that it just may be that as a matter of law, we are not in this body compelled to any conclusion because the President may have committed perjury. At the same time, I want us to not denigrate, not to too lightly respect the obligation of every citizen, when they are called in a civil case or a criminal case and placed under oath, to tell the truth, because when we do not have truth-telling in the judicial system, then the whole legal system is corrupted and can be undermined. That is so fundamental. I have seen witnesses sweat drops of blood, but they told the truth. A businessman lately told me: ``I had to give a deposition and it never occurred to me I was not required to tell the truth.'' A few years ago, I had occasion to prosecute a young police officer who was, basically, I think the driver for the chief of police, a controversial chief of police, in my hometown. I liked him. He was an aggressive young African-American officer and made some good community- based changes. There were people with different views about things, and the young officer made some statements that were not true, and a lawsuit was filed. He testified in that lawsuit and later admitted what he said was not true. It caused a big controversy in town, and in the newspapers. The people were upset, they didn't know whether the chief deserved to be kept in office or not. Finally, we found out it wasn't true. I was U.S. attorney then. We returned an indictment against that young officer for perjury in a civil case because he abused the legal system. He corrupted the legal system and caused great public damage and turmoil in the community. I don't know what the standards are here. I don't expect to be prejudging what ought to occur in this body. But I want to say, as someone who has spent 15 years, really 17 years as a prosecutor, as someone who has been in court all my life professionally, and having seen these kinds of cases, I am telling you, we don't ever want to get in a situation in this country where we treat lightly the act of testifying falsely in a court of law. I mean that very sincerely and from my heart. The President of the United States takes an oath to faithfully execute the duties of the Office of President, and one of those duties is to faithfully ``take care that the laws of the United States be faithfully executed''. I think the Senator from Delaware has given us much insight and much food for thought. He said these are stark and momentous decisions, and they are. But at the same time, he said something else that was just right. He quoted his father saying, ``This country is so big, so strong, so solid; we can handle an awful lot.'' I really believe that. The process is set out in the Constitution and, as the Senator from Delaware said, this is not a constitutional crisis. Some way, we will get through it. If we follow what the Constitution says, if we let the House do its duty, and if they vote impeachment, it will come over here; if they don't vote impeachment, it won't come over here. It is set out clearly in the Constitution. I don't think there will be any doubt about the procedure to follow. I am much comforted, as I have studied the Constitution in that regard, that there won't be much confusion or doubt about how this process ought to be handled. I thank the Senator from Delaware for his comments. They are insightful and important. All of us need to begin to think about this. I don't think we are required to be mute and not say anything about what is obviously taking place around us, never expressing an opinion about anything relating to this matter. This is not that kind of process. I think we ought to be careful and respectful and, above all, fair and just as we do this process.