Jeff Sessions

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I thank Senator McConnell. I say to Senator Smith, we appreciate your comments and thoughtful insight into this very important subject for our Nation. We want to do the right thing with regard to all of our citizens. We want to have a nation in which civil rights are protected and where everyone has an equal opportunity to participate in the American ideal. It is a very, very important issue. I thank Senator McConnell for developing the kind of amendment that will accomplish, I think, the legitimate goals of those who would like to see more opportunity in contracting Federal road contracts while at the same time protecting the great constitutional privileges that all of us in this Nation have a right to count on. I serve on both the Environment and Public Works Committee, from which this legislation came, and the Judiciary Committee. In the Environment and Public Works Committee, we had no hearings, took no testimony, did no study as to the advisability and the practicality of how these preferences work out in real life. For a number of years, I was a U.S. attorney and had the opportunity to prosecute criminal cases of all kinds and sorts. I have a distinct recollection of a case involving a minority individual who had gotten, I think, a $250,000 contract primarily because he was a minority. He was not the low bidder. He got the contract because of the preference set-asides in this highway bill. He promptly turned around and subcontracted the entire contract work to another contractor, presumably not a minority contractor, who did all the work and, in fact, there were false statements made in the course of this situation, for which he was convicted. But there is a lot of abuse in which people put up individuals as straw people just to take advantage of this provision. There are a lot of problems with the implementation of this act that I could talk about at some length. Fundamentally, I will say the bill is not good policy. It is not the kind of interference into the bid process that we ought to have in this country. But secondly, and most important, I will talk a few minutes about the fact that it is not only bad policy, but unconstitutional. We had hearings in the Judiciary Committee on this subject, both before the full Judiciary Committee and before Senator John Ashcroft's subcommittee. The House of Representatives Judiciary Committee has also had hearings on this, which is chaired by Representative Canady from Florida, who is an eloquent spokesman on this subject, who has come to see, with absolute clarity, the unconstitutionality and the unfairness of the racial set-asides that we now have in this bill. Let me say this: The McConnell bill is good. It is a good approach because it encourages new companies; it helps people get involved and get into business for the first time and gives them a lot of other advantages. We ought to do that. We ought to have outreach. We ought to have affirmative action. That is a good ideal for America. It is something that ought to be a part of our law insofar as it is appropriate to do so. But it is wrong to have quotas and set-asides. We first started affirmative action on March 6, 1961. That was when President John F. Kennedy issued this order: The contractors will take affirmative action to ensure that applicants are employed and treated during their employment without regard to race, color, creed or national origin. That is an ideal with which we can all agree. That is an ideal we can all support. It is something we ought to support and we ought to believe in in this Nation. But President Kennedy did not go as far as we have gone today, where we have actual set-asides that give preferences to one group of people on account of their race and denies a benefit or an equal opportunity to another individual on account of their race. That is what is objectionable about this legislation. Let me just say, how did we get to this point? I have, I think, an idea about how we got to this point. Most of us recognize and can remember that there was systematic discrimination against African Americans and other minority groups in this country as little as 30 years ago by law, in some instances. This was an unacceptable event. When the courts dealt with that, whether it was a police department or a fire department or a State agency, they would enter remedial orders, and they would put demands on those agencies to take immediate steps to make up for the explicit discrimination that had been suffered in that agency or department. The courts have always affirmed that. Somehow we slipped from these situations into generalized quotas as part of American law. That is a move which is not justified by policy or law, and the United States Supreme Court, and other courts, are beginning to make quite clear that it is unacceptable. The people of California, with proposition 209, spoke quite clearly as to their view about it, and the courts have promptly affirmed proposition 209, even though this administration and the President of the United States filed a brief saying it was unconstitutional. The Ninth Circuit Court of Appeals ruled that there is no doubt that proposition 209, which prohibited these kinds of quotas and set-asides, was constitutional. I think that we have to deal with this issue because it will not go away. I was present in the Judiciary Committee hearing when Mr. Pech, who was the chief operating officer of Adarand Constructors, testified. And I have done some research into the law. And I would like to share my thoughts with this body. The Constitution requires all of us, not just judges, to uphold the Constitution. We swore an oath, as is on that chart to do just that. I believe section 1111 of the ISTEA legislation is clearly unconstitutional under the Adarand Constructors, Incorporated v. Pena case, the landmark 1995, Supreme Court decision. Adarand involved the same program with the exact same language in this new authorization that was in the previous bill. That was the language the Supreme Court was dealing with and reviewed. In Adarand, the Court ruled all--all--governmental racial classifications, like the ones we have in this legislation, like the one it was considering in the Adarand case--the same language--are subject to the strictest judicial scrutiny. The Court held ``federal racial classifications, like those of a state, must serve a compelling governmental interest and must be narrowly tailored to further that interest.''. It ``must be narrowly tailored.'' There must be a compelling interest. Now, some make the argument--and this is a matter we have heard a lot about recently--some make the argument that the Supreme Court did not strike down this program in Adarand. But I just say this. It did not uphold it, clearly. What they did was set a standard for the validity or invalidity of this program. And they referred the case back to the district court who tried it. And it gave that district court remand instructions. They remanded it, and they gave them instructions as to how they should evaluate whether or not this statute violated the Constitution. Justice Scalia, who was on the Supreme Court, wrote in his concurrence: [i]t is unlikely, if not impossible, that the challenged program would survive under this understanding of strict scrutiny, but I am content to let that be decided on remand [by the district court]. Based on the instructions and the law, as set forth by the Supreme Court, it was not surprising that on remand the Federal district court properly ruled, on summary judgment, that this program, this set aside program, was unconstitutional. They left no doubt about the constitutionality of this program. The district court stated: I find it difficult to envisage a race-based classification that is narrowly tailored. By its very nature, such a program is both underinclusive and overinclusive. Now, those are legal terms. Somebody might think, ``What does that mean, `underinclusive' and `overinclusive'?'' What the judge was saying simply: It is unfair. It overincludes people beyond who ought to be included; and when you do that, you underinclude people who have a right to be included in the bid process, and have a right to participate in these programs. That is the fundamental constitutional wrong. It gives advantages to people who do not deserve it; and it is a disadvantage to people who do not deserve to be disadvantaged. That is a fundamental constitutional principle. It will not go away. So the Court also enjoined, issued an order stopping the defendants from administering, that is, Secretary Pena, from administering section 1003(b) of the ISTEA. So I would say to anybody who looks at this matter fairly and objectively, without hesitation, there is no doubt that under the current state of the law, regarding this specific statute, it has been declared unconstitutional by the courts of the United States. Now, yes, they can appeal this district court ruling. But based on the plain holdings of the Supreme Court, which the district judge clearly followed in his opinion, I submit to you there is virtually no chance that it will be reversed. The Supreme Court of the United States cares about this issue. They care about making sure everybody in America has equal treatment. They want to see race relations in America improve, but they have studied it and they have thought about it. The courts have fulfilled their responsibility, in my opinion. And what have they thought? And what have they decided? Our federal courts have looked down the long road into the future, and they have asked themselves: Will this Nation be better served if we allocate goods and resources and contracts based on the color of one's skin? Is that a defensible policy for a nation to undertake? Can we do that? And they have concluded, no, you cannot, because when you do that you deny someone else an equal right to apply. Other Supreme Court cases have rendered very similar opinions. Bush v. Vera, Miller v. Johnson, Shaw v. Reno, and Richmond v. J.A. Croson Co. all have subjected Government racial preferences and classifications to the strictest scrutiny. In each one of these cases, the Court has found these racial classifications unconstitutional. Section 1111 simply reenacts, without change, the same statutory language that was invalidated in Adarand Constructors, Inc. v. Pena. Mr. President, section 1111 literally does not change one single word in the definition of ``socially and economically disadvantaged individuals''. Both the previous ISTEA legislation and section 1111 refer to the exact same definition in the Small Business Act. This definition states--and I have the legislation here before me--it states that ``contractors shall presume that socially and economically disadvantaged individuals, including Black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans, and other minorities or any other individual found to be disadvantaged by the administration under the Small Business Act, shall be presumed to meet the standard for socially and economically disadvantaged.'' So that is statute--the problem is not regulations. Some would say ``Well, you're quoting from regulations. They might change the regulations.'' This is the Small Business Act. That is specifically referred to in this highway bill to define what ``socially and economically disadvantaged individuals'' are. And it gives a racial preference. It says that a black individual is presumed to be socially or economically disadvantaged whereas a struggling white businessman may not. So what we have here is an overtly racial Government classification. That is why the Supreme Court is concerned about it. Consequently, nothing in this reenactment does anything to strengthen the arguments that this section is constitutional. We, indeed, held no hearings on it. Moreover, there is no legislative record to support this racial classification. The Environment and Public Works Committee did not hear any testimony concerning the constitutionality of this section or the regulations promulgated pursuant to its identically worded predecessor. The only hearings we had were in the Judiciary Committee, as I mentioned earlier. Now, the Clinton administration suggests that the new regulations promulgated by the Department of Transportation somehow strengthen the case for the constitutionality of this provision. This, however, is a totally ineffective argument. Subsequent regulations simply cannot repair a statute that is, on its face, unconstitutional. It is difficult for me to see how anybody would argue otherwise. The courts have held--and I will read the opinion of the district judge here, the district judge, when he found this thing unconstitutional. He said: ``The statutes and regulations concerning the SCC program are overinclusive, and they presume that all those in the named minority groups are economically or, in some act and regulation, socially disadvantaged. This presumption is flawed.'' The Court held that both the regulations and the statute are unconstitutional. The statute is what the Supreme Court dealt with when it sent the district judge its instructions. Finally, some suggest that the Adarand v. Pena decision does not render section 1111 unconstitutional. They point to the language of Justice O'Connor when she wrote in the opinion: We wish to dispel the notion that strict scrutiny is ``strict in theory but fatal in fact.'' The unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country is an unfortunate reality, and the government is not disqualified from acting in response to it. So they say, ``Jeff, she just said what you say is not true. Adarand really did not close the door on this statute.'' But, Mr. President, these advocates do not read the very next sentence in Justice O'Connor's decision where she immediately explains this quotation. Justice O'Connor's next sentence cites, as an example, a State governmental agency that had been found to have been engaged in ``pervasive, systematic, and obstinate discriminatory conduct.'' All Justice O'Connor says in this passage is that proven, widespread, systematic discrimination can justify ``a narrowly tailored race-based remedy.'' In other words, a limited racial preference can be constitutional as a remedy for a proven case of specific governmental discrimination. However, section 1111 is not a remedy for specific governmental racial discrimination. As I said earlier, there has been no determination in this case that the administration of the Federal Highway System is systematically and pervasively biased in its operation.

Mr. SESSIONS. Yes.

Mr. SESSIONS. That is correct. Such is the essential holding and the basic law of this country. Where you have systematic, proven discrimination, a court can issue a remedy that may provide advantages to one racial group who has been discriminated against.

Mr. SESSIONS. Certainly.

Mr. SESSIONS. Mr. President, I agree with that. Every group that listed ideas for that neighborhood--all of their ideas were good and all of those ideas would work. I think you are correct, Senator Coats, in how you are approaching this idea. I believe that we need to allow the people in our communities to develop plans for their own neighborhoods, to make them work, and we will get a lot better ideas than some of the programs that have been conjured up in this Congress.

Mr. SESSIONS. First, I congratulate the Senator very much on this renewal idea and community empowerment. I had the opportunity to serve as a U.S. attorney and be a coordinator of a communities-based revitalization program known as Read and See in Mobile and Martin Luther King Jr. neighborhoods--a great neighborhood that declined dramatically over the years. What we did first was we had a big town meeting, a community meeting of the leaders and the people who live there. We broke up into discussion groups and we listed priorities. All 10 groups listed priorities that they thought their community needed most. First, I remember distinctly that every group listed crime. They wanted a safer neighborhood for their children and their families to live in. They listed programs where they wanted their churches to be stronger in helping kids. As I recall, I can't think of a single one that listed a preferential contract for businesspeople as a need for that community. Is that what the Senator was saying and suggesting, that we really need to deal with deeper problems than the kind we may be so politically engaged in now?

Mr. SESSIONS. Precisely so. The Senator from Kentucky is precisely correct. He has gone straight to the heart of this matter and I think makes a good point. You know, many of us go around, and we blame Federal judges for much of the litigation and problems and some of these ideas that many people say are liberal ideas. But in this case, I think it is the Congress that has been passing legislation that goes beyond its bounds and is being brought to task by the courts. So, fundamentally, I just further state that Environment and Public Works Committee made no findings, we made no factual analysis of the interstate highway program in order to determine there is some sort of systematic discrimination ongoing that ought to be corrected. In fact, I think a good argument can be made that the objectivity and fairness of the bid process is virtually above reproach. So there is just no basis for this. That is why it has no chance, in my opinion, of ever passing Supreme Court muster. And this Congress ought not be passing a bill that is bad public policy and is unconstitutional. Mr. President, I want to read a quote from Mrs. Valery Pech who testified on this subject. She is the wife of Mr. Randy Pech who owns Adarand Constructors. She is an owner herself, I believe. She said: We started our family-owned company in 1976 specializing in the installation of highway guardrail systems. In August of 1989, we lost yet another Federal highway contract on which we had submitted the lowest bid. Adarand lost this job and numerous others, past and future, not because of poor reputation, not because our price was too high, not because we limited our bid date, not for any other reason but one. Randy, as owner and operator of Adarand is a white male. We didn't like it. We fought the decision. We contracted a legal foundation to seek help. Six years later, in 1995, the Supreme Court ruled for us and against race-based decisionmaking in the Adarand Constructors case. Adarand is the only nonminority guardrail business in the State of Colorado. All our competitors are classified as disadvantaged business enterprises. Their status is DBE, and contracts are awarded based solely on the owner's race or gender regardless of whether or not they have suffered past discrimination. She lists those competitors that they compete against. She notes all of these contractors have been in business--her competitors are minority owned for over 10 years and have solid reputations for getting work done. These four competitors get 95 percent of their work by being low bidder in other than Government contracts; yet when they bid against Adarand for Government contracts, they get a preference and are able to get the bid, although they bid higher. Do you see the unfairness of it? These are strong competitive companies. One simply happens to be headed by a Hispanic and one is not. The one who is not gets hurt, and the other one has an advantage. That is why the polls of all racial groups feel that these are not fair and just preferences. Mr. President, I will not belabor the subject. Again, I want to congratulate the Senator from Kentucky for his leadership in coming forward with a remarkable proposal that gives opportunity, gives it affirmatively, reaches out to help disadvantaged, gives them a chance to be successful in getting Government contract work, but at the same time does not violate the Constitution. In conclusion, I have no doubt that this section is unconstitutional. It is neither supported by a compelling Government interest nor is it narrowly tailored. Therefore, I urge the Senate to consider Senator McConnell's amendment. I cannot in good conscience vote for legislation that I consider to be unconstitutional.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, this has been a great debate. I think about the abilities of those of us in this body to participate in unlimited debate, and I think it is a great thing. Great and free debate is a characteristic of American society. Unfortunately, people use the freedom and the money they raise sometimes to run negative ads. I certainly see nothing in McCain-Feingold that would stop that kind of activity from happening. But this is an important vote. As a matter of fact, I consider it a very fundamental and crucial vote for America. In my 1996 campaign, just over a year ago, in the primary, I faced seven Republican candidates. Two of them were multimillionaires, and two of those individuals spent $1 million-plus out of their own pockets to further their dream of being elected to this great body. They used most of it to attack me. I was attorney general, I was leading in the polls, and I took most of the brunt of that. Two other individuals in that race raised or spent themselves over a half-million dollars to attempt to put their message out to the Alabama people. I spent approximately a million dollars during that primary. I was outspent $5 million to $1 million in that primary. And then in the general election, there was also a very vigorous and contested general election. My opponent spent approximately $3 million, as I recall, in that race. One of the key parts of that race and one of the things that was most interesting and painful to me was that I was attacked and received a volume of attack ads from money that really was raised by the Alabama Trial Lawyers Association. You see, in Alabama, there is a contested, bitter fight over the attempt by many in the Alabama legislature to reduce the aberrationally high verdicts in plaintiff litigation in the State. It embarrassed the State and there was a bitter fight over it. The Trial Lawyers Association, which wanted to continue to file those lawsuits and receive those big verdicts opposed that legislation. It was bitterly fought over. Tort reform passed the house of representatives twice but twice it failed in the Alabama State Senate. My opponent was the chairman of the senate judiciary committee, where most of those bills died. He was also, himself personally, a plaintiff trial lawyer. He had a plaintiff trial lawyer lawsuit filed during the election. He was suing somebody for fraud during the election. That was an important issue. It was an issue that the people of Alabama needed to discuss and know about. The Trial Lawyers Association raised, I guess, what you would call ``soft money'' in the amount of around a million dollars to express their views and to oppose me because I took a different view. Earlier today, I saw somebody with a chart that had an ad similar to the ad that was run against me. It complained about an attorney general--obviously, in a different State--and it said, ``if you don't like what he did, call his office and complain.'' This was their attempt to get around some of the campaign expenditure rules and laws that existed in our country. We faced those ads and were frustrated by them. When I came here to this body, I was prepared to consider what we could do to fix that situation. Frankly, I was not happy with having such a sum of money being raised and used against me in my campaign. I have given it a lot of thought. I talked to the manager, the distinguished Senator from Kentucky, Senator McConnell, and others. I have done some research. I have considered the Constitution and what I believe is fair and just and consistent with the great American democracy of which we are a part. Based on that, I have concluded that we must fundamentally recognize the primacy of the first amendment, which provides to all Americans the right of free speech. That includes the right to spend money to project your views, as the Supreme Court has said. To limit that is a historic event and an unhealthy event, in my opinion. They say, ``Jeff, we are not trying to limit people's free speech; we just want to limit your speech during a campaign, just during an election cycle.'' When do people want to speak out most if it is not during a campaign? Isn't it then that people are most focused on the issues and have the greatest opportunity to change the direction of their country? Isn't that when they want to speak out? It certainly is. If you want to limit free speech, I say to you that the last place you want to limit it, is during a campaign cycle. That would be terribly disruptive of freedom in America. Now, they say, ``Well, it really doesn't interfere with the first amendment.'' But I was on this floor, Mr. President, early last year-- in March of last year, as I recall--when the Democratic leader and other Members of this body proposed--and people have forgotten this--a constitutional amendment to amend the first amendment to the U.S. Constitution, to justify their attempt to control free debate in America during an election cycle. It was an attempt to reduce the expenditures during that election cycle and give this Congress, incumbent politicians, the right to restrict their opponents' ability to campaign against them. I thought that was a thunderous event. I said at the time that I considered that a retreat from the principles of the great democracy of which we are a part--as a matter of fact, the largest retreat in my lifetime, maybe the largest retreat in the history of this country. And, amazingly, 38 Senators voted for it. You have to have two-thirds, and that was not nearly enough to pass this body. But I was astounded that we would have that. But at least those people who favored the amending of the first amendment were honest about it. They knew what they were attempting to do with election campaign finance reform, and that is to affect the ability of people to raise money to articulate their views during an election cycle and that a constitutional change was needed to effect such a change. So, Mr. President, I have a lot of issues that could be discussed here. I am not going to go into any others. I simply say that I believe this is a historic vote. I think it does, in fact, reflect our contemporary view of the importance of the right of free speech. We have had the American Civil Liberties Union and other free speech groups opposing McCain-Feingold because they are principled in that regard. But others who have, in the past, been champions of free speech curiously are now attempting to pass this legislation, which I think would restrict the ability of Americans to speak out aggressively and criticize incumbent officeholders and attempt to remove them from office and express their views in a way they feel is important. So, Mr. President, those are my thoughts on the matter. I will be opposing this legislation. As to the question of union contributions, dues being used against the will of the members, against their own views on political issues, I think that is something we could legislate on. Somebody said such a change would be a ``poison pill'' for campaign finance reform. Well, it is a poison pill to me. I am not going to support any campaign reform that is going to allow somebody's money to be taken and spent on political issues they may oppose.

Mr. SESSIONS

Mr. SESSIONS. I spent 15 years in my professional career as a Federal prosecutor prosecuting full-time before Federal judges. I have had the pleasure of practicing before some of the finest judges in America. It is a thrill to have that opportunity, to have the opportunity to represent the United States of America in court and to utilize our Constitution, our laws and our statutes, and the logic that God gives us the ability to utilize, to analyze difficult problems. Many of us can disagree, but I do rise today in opposition to the nomination of Margaret Morrow to the U.S. District Court bench for the Central District of California. This is not an easy decision. These are not pleasant tasks for those of us on the Judiciary Committee and in this Senate to decide to vote against a Presidential nomination. But if we believe in that and we are concerned about that, our responsibility as Members of this body calls on us to do so. By all accounts, she is a fine lawyer and a good person. However, her writings and speeches which span over a decade indicate that she views the Federal judiciary as a means to achieve a social or political end. This nomination is all the more important when one considers that Ms. Morrow's home State of California has repeatedly been victimized recently by liberal and undemocratic Federal judges. Moreover, judicial activism has plagued her judicial circuit, the ninth circuit, like no other circuit in the country. Consider for a moment how big a problem judicial activism is on the ninth circuit. In 1997, last year, the Supreme Court reversed 27 out of 28 decisions rendered by the ninth circuit. In 1996, the Supreme Court reversed 10 out of 12 ninth circuit decisions. That pattern has been going on for decades. As a Federal prosecutor in Alabama, when criminal defense lawyers file briefs and cite law to argue their opinion or to suppress evidence or matters of that kind, they most frequently cited ninth circuit opinions because those were the most liberal in the country on criminal law. Frankly, they were not given much credit around the country. Most judges in the United States recognize that this circuit too often was out of step with the rest of the country. There are a number of factors that cause me to oppose the confirmation of Ms. Morrow. Chief among the factors is her skepticism, if not outright hostility, toward voter initiatives. In a 1988 article, Morrow criticized California's initiative process. In this article, she stated, really condescendingly, these words, ``The fact that initiatives are presented to a `legislature' of 20 million people renders ephemeral any real hope of intelligent voting by a majority.'' I suggest that that indicates a lack of respect for that process and the jealously guarded privilege of California voters to enact legislation by direct action of the people. She further criticized the initiative process with this statement: ``The public, by contrast, cast its votes for initiatives on the basis of 30- and 60-second advertisements which ignore or obscure the substance of the measure.'' At the time of her hearing, I found that Ms. Morrow's suspicion of initiatives particularly troubling because of two recent California initiatives, Proposition 187 and Proposition 209, the California civil rights initiative, both of which have been blocked by activist Federal judges in California. In fact, the judges in the ninth circuit have invalidated voter initiatives on tenuous grounds since the early 1980s. These decisions demonstrate the enormous power that a single sitting Federal district judge possesses to subvert the will of the people. Morrow's criticism of citizen initiatives reveals an elitist mindset characteristic of activist judges who use the judiciary to impose their personal values onto the law. Unfortunately, recent events have left me even more concerned about her disdain for the people's will as expressed in voter initiatives. Late last year, the ninth circuit effectively enshrined Ms. Morrow's view of initiatives into ninth circuit law. In an opinion striking down yet another voter initiative, term limits for California State legislatures, the ninth circuit held that Federal courts must scrutinize voter initiatives more closely than ``ordinary legislative lawmaking.'' This ``extra scrutiny'' is necessary, according to the ninth circuit Judge Stephen Reinhardt and Betty Fletcher, because initiatives are not the product of committee hearings and because ``the public also generally lacks legal or legislative expertise.'' In the end, the ninth circuit invalidated the term limits initiative not because term limits are unconstitutional--because I submit to you they plainly are not unconstitutional--but because the two Federal judges did not think the voters fully understood what they were voting for. The ninth circuit does not need any more reinforcements in its war on the initiative process. The people of California are rightly jealous of their initiative process. They are frustrated that judges go out of their way to strike down the decisions they reach by direct plebiscite. We don't need to send them another judge, another leader on that court who would support the anti-initiative effort. Ms. Morrow's distaste for voter initiatives is not the only troubling aspect of her record. For example, in a 1995 law review comment, she wrote what can be interpreted clearly to me as a blatant approval of judicial activism: For the law is, almost by definition, on the cutting edge of social thought. It is a vehicle through which we ease the transition from the rules which have always been to the rules which are to be. I know she has suggested a view of that language that would indicate that she meant something like the practice of law, rather than the rule of law. But that's not what she said and, in fact, maybe she meant it to apply to both circumstances. In fact, I think that's the most accurate interpretation of it. She may well have been talking about the practice of law, but at the same time her approach to law, because that is what her language includes. It would suggest to me that this is, in fact, the language of a judicial activist. In a 1983 speech, she also made comments that suggest approval of judicial activism. In this speech, she quoted Justice William Brennan, the evangelist of judicial activism, stating: Justice can only endure and flourish if the law and legal institutions are ``engines of change'' able to accommodate evolving patterns of life and social interaction in this decade. Obviously, using the law as an ``engine of change'' is the very definition of judicial activism and is fundamentally incompatible with democratic government. Mr. President, it is a serious matter when the people, through their contract with the Government and their Constitution, set forth plain restraints on the power of the law, when the people, through their legislators in California, or through their Congress in Washington, pass statutes requiring things to be done one way or the other, and when a judge, if they do not respect that law, feels like he or she can reinterpret or redefine the meaning of words in those documents in such a way that would allow them to impose their view of the proper outcome under the circumstances. That makes them a judicial activist. I submit that these writings from her past indicate that tendency. Also, in 1983, the nominee strongly criticized the Reagan administration's efforts to restrict the Legal Services Corporation from filing certain categories of lawsuits. As many of you know, the Legal Services Corporation grantees--they receive money from the Government--have repeatedly filed partisan suits in Federal courts to achieve political aims. For example, the Legal Services Corporation has repeatedly sued to block welfare reform efforts in the States. Issues of public policy simply are not properly decided by litigation. The use of public tax dollars to promote an ideological agenda through the Federal courts is not acceptable. Of course, support for the historic mission of the Legal Services Corporation--helping the poor with real legal problems --is not the issue. What bothers me is Ms. Morrow's opposition to President Reagan's attempt to depoliticize the Legal Services Corporation and to direct it's attention fundamentally to its goal of helping the poor. But we had a very serious debate in America and I think, for the most part, it has been won; for the most part, Legal Services Corporation has been restrained. There are still problems ongoing, but I hope we have made progress, despite the very strong opposition of Ms. Morrow in her writings. So Ms. Morrow's intelligence, academic record, and professional achievements are not in question. However, her writings, published over the last decade, provide a direct look at her view of the law. That view, I must conclude, indicates that Ms. Morrow would be yet another undemocratic, activist Federal judge. One last point must be made. Unlike other judicial nominees, Ms. Morrow has not previously been a judge. Consequently, she does not have a lengthy judicial record for the Senate to review. In this situation, we must rely on her private writings and speeches to determine her judicial philosophy. This is not an easy or certain task. We must make judgments as to what is relevant and probative and what is not. In this situation, I have made such an inquiry and have decided to oppose the confirmation of this very able attorney. The Senate must fulfill its advise and consent responsibilities to ensure that federal judges respect their constitutional role to interpret the law. Consequently, I urge you to oppose this nomination. I yield the floor.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, will the Senator yield?

Mr. SESSIONS. I would like to say that whereas I concluded at the hearings that this nominee had these kind of tendencies based on what I saw, a majority of the committee did not agree with that, and we did not have the overwhelming amount of evidence that we have now. I say that in all due respect to the Senator from Pennsylvania. He had a hearing in Pennsylvania. These things did not come up at that time. I understand. I don't criticize the district attorneys and the police. They don't like to be involved in this. But I think they had to. They felt they had to come forward, and they did. I think it is time now for us to do our job. I wanted to say that in respect to the Senator from Pennsylvania.

Mr. SESSIONS. Mr. President, the process of advise and consent in the U.S. Senate for judicial nominees is indeed an important one. We have had some tremendous debate already this afternoon. And we have had it on other nominees. The Senators that have spoken earlier today are outstanding Senators who deeply care about their work. And I respect them all. I think it unfortunate that we may have crossed over into some personal matters that would not be normally displayed on this floor. But I think it is important what we are doing. I think it is commendable that people speak with passion about what they believe in. A Federal judicial lifetime appointment is an important office. I served as an assistant U.S. attorney, a Federal prosecutor, for 2\1/2\ years. I served as a U.S. attorney, a Federal prosecutor, for almost 12 years. I practiced every day, full time, before Federal judges. I respect and believe in Federal judges with great passion. I believe we ought to have the finest quality of people we can possibly have on the federal bench. I have tried, as I have participated in the Senate Judiciary Committee, as a member, to conduct myself in that committee with the highest levels of professionalism. When this nominee came up, I had some concerns as a professional prosecutor. I had a feeling, an intuition, that there was something unhealthy about this nominee, that there was perhaps an unstated bias against prosecutors and law enforcement. We had a number of matters that indicated such a bias. She testified well and gave some explanations. I concluded that we ought to vote no on the nominee. A number of other people, a majority, did not oppose the nominee. Her nomination came to the floor. I think it is true, as Senator Ashcroft has suggested, had he not put a hold on that nominee, she would be a Federal judge today. That was the direction we were heading. The vote was coming up. The committee had voted 2 to 1 in favor of that nominee. The President has asked that his judges be voted on. I think he has a right to ask that, as it is a fair thing for the President to ask. But I think the President also recognizes that sometimes giving a little insight into it is important; otherwise we become nothing more than a rubber stamp or a potted plant. And I do not intend to do that. I have a responsibility. I serve on that committee. I care about the Federal judiciary, and I want good quality judges on the bench. So that is where we are. I think one thing is important and instructive out of this entire process. Senator Specter and Senator Santorum and Senator Biden had a hearing in Philadelphia. They sought out comments. They did not receive any substantial negative comments. In defense of Senator Specter, at the hearing he volunteered to allow me to continue my questioning of Judge Massiah-Jackson beyond the normal time limit that I would have been given. I do not think there has been an attempt to suppress the truth. What happens in situations like this, however, is that people hate to speak out against a person who has been nominated for a high position. They just do not like to do it. There is no fun in it. There is no pleasure to it. It is not a nice thing to have to do. So what really happened was, after the hearing in which I questioned Ms. Massiah-Jackson, as did Senator Specter and Senator Kyl and others, it was reported in the Philadelphia papers, apparently, that law enforcement officers, line prosecutors, who had been in the courtroom day after day in Philadelphia, the Philadelphia district attorney and others began to think about this, the prospect of this nominee being a full time, lifetime appointed Federal judge. As a result of that, they made some decisions. They decided to come forward and express their true beliefs. Those opinions ought to be respected. I would say, in accord with Senator Ashcroft, in my experience I have never seen the kind of unanimity of opinion in opposition to a nominee by a group of professional people who have associated with that nominee on a daily basis as I have seen in the case of this nominee. The objections are bipartisan--Republicans and Democrats. The district attorney in Philadelphia is a democrat and is nationally known, Lynne Abraham. She is a true professional, a leader in a number of different activities for law enforcement, and has substantial credibility. She wrote the Judiciary Committee, after our hearing, this letter. I will quote from it. You can listen because it is very carefully explained. She chooses her words very carefully. It is a significant opinion by a prosecutor in Philadelphia whose assistants practiced under this judge on a regular basis, who personally served as a judge with her on the bench at another point in time, a fellow colleague with her. This is what she said. She first said she had never taken a position on a judge. She did not want to take a position on a judge, but she felt she had to. She said: My position on this nomination goes well beyond mere differences of opinion or judicial philosophy. Instead, this nominee's record presents multiple instances of a deeply ingrained and pervasive bias against prosecutors and law enforcement officers and, by extension, an insensitivity to victims of crime. Moreover, the nominee's judicial demeanor and courtroom conduct, in my judgment, undermines respect for the rule of law and, instead, tends to bring the law into disrepute. Ms. Abraham, a Democratic district attorney in Philadelphia, goes on to write: This nominee's judicial service is replete with instances of demonstrated leniency toward criminals, an adversarial attitude toward police, and disrespect and a hostile attitude toward prosecutors unmatched by any other present or former jurist with whom I am familiar. I say, Mr. President, that is a serious comment by a serious person about a nominee that they felt very deeply about. It was important that we hear it. Had that nominee not been held up over Christmas, and had it not been they had an opportunity to discuss it, we would not have heard that. I submit this, too, that I have been a prosecutor that supervised a staff of attorneys. They talk about judges. You know who the judges are that are just a terror to work before. You know who the ones are that are always looking to undermine the case, to rule for the defendant. A prosecutor, see, does not get to appeal most rulings on evidence. A motion of judgment of acquittal on a case is a final judgment. The prosecutor has no right to appeal. But a judge can rule against the defendant, and the defendant has the right to appeal. So if a judge is not willing to give the prosecutor a fair trial, there are many times there is no recourse. A granting, for example, of a judgment of acquittal by a judge is an unreviewable order. They can take a case from the jury, declare there is not enough evidence there, and it is the same as if a jury had acquitted them. Double jeopardy applies and that sort of thing. So this is a problem. It is particularly a problem with a lifetime Federal appointment. Other law enforcement officials share Ms. Abraham's concern. District Attorney John Morganelli of Northhampton County, PA, also opposes the nomination of Judge Massiah-Jackson. Mr. Morganelli, who is also a Democrat, wrote last month that Judge Jackson's conduct is ``unjudicial, improper, and illustrates a disdain for police and prosecutors.'' Those are his words, not mine. Another district attorney from Pennsylvania, Bob Buehner of Montour County, also opposes the nomination. He wrote that Judge Jackson's ``actions as a common pleas judge in Philadelphia have, at times, bordered on the outrageous. She has used profanity in her courtroom. What is even worse is her consistent, demonstrated exceedingly adverse attitude toward prosecutors and members of the law enforcement community. That is what troubled me to begin with about this matter when it came up before the committee. We had the circumstance in which Judge Jackson in the courtroom, on the record, said to a female assistant U.S. district attorney: ``Shut your `F'-ing mouth.'' Well, some may say people slip. They say things they ought not to say. But from what was said about that, it troubled me, from some of the other circumstances involved, that it indicates a lack of respect for the prosecutor, a lack of understanding that the prosecutor is a litigant, too, who represents the people of Pennsylvania and is entitled to the same protections of the law as is the defendant. That is what concerned me about it. Now we have these letters from these professional law enforcement people in Philadelphia. They have seen this judge handle hundreds of cases, thousands of cases perhaps. Their assistants have been prosecuting there on a daily basis. They talk about what it is like to be in that courtroom. That is where we are today. Let me say this. These are not just isolated comments of one or two prosecutors. In fact, on January 8 of this year, the Pennsylvania District Attorneys' Association officially and unanimously voted to oppose the confirmation of Judge Massiah-Jackson. The association found that Judge Jackson's record ``indicates an attitude which is unusually adversarial toward police and prosecutors. Her record also indicates a tendency to be lenient with respect to criminal defendants.'' In addition to the prosecutors, many police officers oppose the nomination of Judge Jackson. For example, the Philadelphia lodge of the Fraternal Order of Police announced their opposition to Judge Jackson last month. The Philadelphia lodge of the Fraternal Order of Police stated that: Judge Jackson has an established record of being extremely lenient to criminals; insensitive to the victims of crime; and has posed a direct threat against police. Judge Jackson's bizarre rulings, coupled with her challenging and adversarial attitude toward police and prosecutors, make it appear she is on a crusade against public safety. That is the Fraternal Order of Police there. Now, even in a great city the size of Philadelphia, judges have reputations. Police officers know them. They know what kind of experience it is to appear before them. They know how a hostile judge can leave them hanging out to dry--and it can be a very tough day indeed--and what it is like to be before a fair and objective judge. I do not think that is a flippant comment. I think that represents a considered opinion of the police department, the police officers, the line police officers in Philadelphia. Judge Jackson's nomination is so controversial that even the National Fraternal Order of Police has taken a stand and formally opposed her confirmation. I would like to share with my fellow Senators some examples that demonstrate why these law enforcement people oppose Judge Jackson's nomination. While these are just a few of her decisions--many of which I firmly disagree with--I think they indicate some of the reasons why they would reach these conclusions and why she should not be confirmed as a judge. In Commonwealth v. Ruiz, Judge Jackson acquitted a man accused of possessing $400,000 worth of cocaine because she did not believe the testimony of the two undercover officers. In this case, Judge Jackson pointed out in the courtroom the two undercover officers, telling the onlookers ``to take a good look at the undercover officers and watch yourself.'' Well, some say, ``Well, you know, maybe they shouldn't have been testifying. Maybe they would have been identified anyway. What harm did that do?'' I will tell you what troubled me about it, in addition to just the plain fact that it may have jeopardized the lives of line police officers. What went through my mind was, what would make her do that? Why would she do that? What kind of hostility or bias against police and law enforcement would cause her to go out of her way to identify police officers and tell others to watch out because they might come out to arrest you or catch you. That is what concerned me from the beginning about this case. Detective-Sergeant Daniel Rodriguez, one of the undercover officers exposed by Judge Jackson, had this to say: ``I hope I don't ever have to make buys from anyone in this courtroom. They would know me but I wouldn't know them. What the judge said jeopardized our ability to make buys. And it put us in physical danger.'' Now, the reason that is significant is in every sizable police department there are a number of police officers who, for a period of time, work in an undercover capacity. It is the best way to make a drug case because the one guy who sells drugs today is going to sell them tomorrow. You simply send somebody out pretending to be a drug dealer and put a tape recorder under his coat. He goes out to buy drugs from him and records it so it is not one person's word against another one. It is actually the drug dealer's recorded word and you can play that in court and the jury who hears it can feel like they are right there, know whether or not there was any entrapment. They will know everything that was said and they can make a decision whether this was a person who committed a crime. These officers were undercover police officers. This was their responsibility--to go out on a regular basis to make cases. I don't know, maybe they are witnesses in other courtrooms there. Maybe there were other drug defendants there, maybe families of drug dealers who also dealt in drugs, who may have been of a violent nature. It made the police officer unhappy and it also made him afraid. He knew that if he ever tried to make an undercover buy from any of those individuals they would not deal with him and may even harm him. Again, why would she do that? Why? What would make a judge do that-- something I have never seen in my entire lifetime or practice of law as a prosecutor. By the way, we did ask about this matter and some of the others at the hearing, and she did have a chance to answer to them. In addition, Judge Jackson made some very offensive comments to prosecutors in court. In Commonwealth v. Willie Hannibal she told an assistant United States attorney, as I said, ``Will you shut your `f- ing' mouth.'' When asked about this comment by the Philadelphia Inquirer, Jackson said, ``Maybe I would suggest it offended [Ms. McDermott], but I can't imagine the defendant was offended.'' Now, later, when the Judicial Inquiry Commission, the disciplinary commission of the Pennsylvania judicial system, disciplined her in some fashion she said she was sorry and she shouldn't have done it and she said that before our committee. But to the newspaper, her comments didn't reflect remorse to me, and in fact she said it may have made the prosecutor mad but it made the defendant happy. It is the kind of odd approach to judging that I think is unhealthy. I believe it shows an insight into her attitude about law enforcement and criminal law that is very instructive. She is also on record as using profanity in another instance in the courtroom. Now, you would expect, perhaps, if my intuition is correct, that this is an anti-law enforcement judge, a person who is more concerned about the rights of criminals than about the rights of the victims, that it would show up in the sentencing tendencies of the judge. In this case it really does. In Commonwealth v. Norman Nesmith, the defendant was convicted of striking a pedestrian with his car, leaving her seriously injured in a gutter, fleeing the scene of the crime and beating into unconsciousness one of the woman's relatives who tried to thwart his escape. As usual, the defendant waived a trial. You have a right to waive a trial by jury and be tried by the judge. Apparently, many people waive their jury trial early on in the system in Philadelphia and they don't know what judge is actually going to hear it and they are tried before a judge and not before a jury. They have a right to be tried by a jury if they demand it. At any rate, this individual waived a trial by jury and asked to be tried by the judge herself. She sentenced him to 2 years probation for all seven convictions. The defendant had a long prior record for that offense. In Commonwealth v. Jerome Gray, the defendant severely beat his girlfriend. The victim had cracked ribs, a collapsed lung, a ruptured spleen that had to be removed. After being released from the hospital the defendant threatened to kill her. As usual, the defendant waived jury trial and was tried by Judge Jackson. He was found guilty of recklessly endangering another person, aggravated assault, second-degree and simple assault, and was sentenced to only 24 months probation. In Commonwealth v. Freeman, the defendant shot and wounded another man in the chest because the defendant laughed at him. Judge Jackson convicted the defendant of a misdemeanor instead of a felony offense and sentenced him to 23 months, but then immediately paroled him so he did not have to serve any prison time. In Commonwealth v. Jenkins, the police arrived at the scene of an armed robbery within minutes. They were given detailed descriptions of the robbers and told that the suspects had run north along the street. The descriptions were broadcast over the radio. Soon thereafter, other police officers arrested an individual matching the description 1\1/2\ blocks from the crime scene. When approached by the police, the suspect took a roll of cash from his pocket and threw it on the ground. Amazingly, the judge ruled that probable cause did not exist to make the arrest or stop, and suppressed the stolen cash. She also suppressed the in-court and out-of-court identifications. Now, police have a responsibility and a duty to be on the streets to try to protect us from crime. The Supreme Court is clear, in my opinion, that these kind of stops by police officers when they have this kind of probable cause are constitutional. Here, the police saw the defendant throwing down a roll of money, he meets the description of a defendant, he is running a block and a half away--that is the kind of basis to make a stop. If we eliminate the ability of police to make that kind of good, heads-up police work because some judge says it violates the search and seizure law, we are in real trouble. The law does not say that is illegal. In fact, the Supreme Court of the United States, and I am sure the Supreme Court of Pennsylvania, holds regularly that those kind of searches with probable cause are legitimate and constitutional In Commonwealth v. Hicks, the defendant was charged with robbery, theft, receiving stolen property, aggravated assault and simple assault. The defense made a motion for continuance because a police officer that the defense had called did not show up to testify, even though he had been subpoenaed. Judge Jackson ruled that the officer was under the State's control and forced the prosecution to dismiss or nolle pros the case. When the prosecution refused to nolle pros the case, she dismissed the charges. Judge Jackson's order dismissing that case was reversed by the appellate court and the charges were reinstated. The appellate court noted that the prosecution was ready to try the case, the prosecutor was ready to try the case. What wrong had he or she done? The only motion before the court was a defense request to continue the case until he got his witness there. Judge Jackson could simply have granted the motion by the defendant to continue the case instead of dismissing the charges. Prosecutors don't like to resist judges. They have to practice before them on a regular basis. It is something that they have to do. I say, from my reading of those facts, that that prosecutor was probably a young person not long out of law school, hustling to handle a whole bunch of cases, and just would not knuckle under. He was not going to nolle pros that case because there was no basis for it. Why would she dismiss it and cause the State to go to the incredible expense of appeal is not rational to me. It does not suggest that we have an evenhanded justice in Judge Jackson's courtroom. In fact, just the opposite. Mr. President, there are a number of other things that we could say about this with regard to sentences. I asked Judge Jackson about this at the Judiciary Committee hearing. The State of Pennsylvania has some sentencing guidelines. They are pretty broad. They are not as strong and not as tight as the Federal guidelines but they are significant. You carry a gun during the commission of a crime, you have another 5 years you have to serve. It has to be 5 years for that gun, regardless. If you are convicted of aggravated assault, felony-one, then you are looking at 10 to 20 years in jail. Under the sentencing guidelines, according to her own numbers presented by Judge Jackson, she departed from the sentencing guidelines twice as much as other judges in Philadelphia. What I don't think those numbers show and what would make them even more dramatic, they don't show the instances that appear to be so regular in which she convicted the defendant of a lesser offense than which he was charged. The District Attorney's Association have provided some 50 cases that show, time and time and time again, that this judge convicted the defendant on a lesser offense than what they were charged when it would seem it was almost impossible for the defendant not to be convicted on a higher and more serious offense. For example, Commonwealth v. Sprewall, the defendant ordered a friend to shoot the victim but the friend refused. The defendant took the gun from the other defendant's hand. The defendant's brother then tried to stop the defendant, but he pushed away his brother and fired over five shots at the fleeing victim, hitting him in the stomach, thigh, buttocks and leg. The victim slipped in and out of consciousness when he was admitted to the hospital where he spent 3 weeks. One of his toes had to be amputated and he had to use a colostomy bag for 10 months following surgery. Despite this plain evidence of serious bodily injury, in Philadelphia if you commit an aggravated assault that causes or attempts to cause serious bodily injury then you have been convicted of felony 1, 10 to 20 years. An injury is defined as serious if it causes the protracted impairment or loss of a bodily member, organ, serious or permanent disfigurement, or a substantial risk of injury. The classic example of aggravated assault in a first-degree felony is the shooting of a gun at a person. You don't even have to hit him. If you were trying to then you are attempting to cause serious bodily injury. This person was hit a number of times. Despite this plain evidence of serious bodily injury, the judge convicted the defendant of only felony 2, aggravated assault, causing nonserious injury, on the dubious theory that there might have been more than one shooter and that the defendant's intent to cause serious injury was somehow in doubt. Thus, the court aborted having to impose the 5-year mandatory minimum sentence for felony 1 aggravated assault. The judge then sentenced the defendant from 15 to 30 months, one- quarter of the minimum required sentence that he would have faced had he been convicted under the more serious offense. According to the report, it goes on to say that had this defendant been sentenced to the mandatory minimum of 5 years imprisonment, using a gun, that he would still have been serving his sentence in 1993 when he was at that time arrested again for gunpoint robbery, and he would have been in jail in 1994 when he was, again, on two occasions, arrested for gunpoint robbery. In another case, the defendant shot the victim, hitting him in the chest and back. The victim had to undergo emergency surgery and spent 2\1/2\ weeks in the hospital with the first 3 days in intensive care. Despite this clear evidence of a felony-one aggravated assault, the court found the defendant guilty of only second-degree aggravated assault. The defendant was then sentenced to 2\1/2\ to 5 years instead of at least the minimum sentence of 5 to 10 years. I think I misspoke. I believe the minimum sentence under a felony-one sentence would be 5 to 10 years, instead of 10 to 20. I will not continue to discuss those cases, but there are many of them. There are some 50. They are replete with just these kinds of circumstances in which serious cases are reduced and the defendant is found guilty on a lesser charge. For the most part, a judge's decision to do this is unreviewable; that is, there is no way the prosecutor can appeal because the failure to convict on the more serious charge is an acquittal on that charge. And the judge being the finder of fact, jeopardy attaches. That is a final judgment. Under the double jeopardy clause of the United States Constitution, and I am sure the Pennsylvania Constitution, criminal defendants can't be tried again for that same offense. So it is over. That is a final decision. So the judge has this unreviewable power. Some people do not realize what the power of a judge has. They have this unreviewable power to make certain findings of fact that can never be reviewed. And the prosecutor and the victims in separate and subsequent offenses have to live with that. There is nothing they can do. You can't sue a judge. They have immunity. Judge Learned Hand said this about Federal judges: ``There is nothing they can do to us. They can't fire us, and they can't even dock our pay.'' So we are considering this nominee who has a lot of good friends and has been actively involved in her community. I am not saying anything about that. I am just saying that I am confident, based upon my review of this record, that this nominee has an unhealthy bias against law enforcement. It is the kind of bias that I must say is disqualifying. It suggests that she ought not to be confirmed to a lifetime appointment. At least in Philadelphia she has to come up for election or review and can be removed from office if she continues to act in a way that is arbitrary and capricious and unjustified. But when we appoint somebody as a Federal judge, then they have it for life. Let me say this: It is a difficult task. It is an honor to be nominated. I know this is not a pleasant thing for Judge Massiah- Jackson to go through. She is still a State judge, and will be able to continue as that. And perhaps this will cause her to reevaluate whether or not she has been objective in this process of handling criminal cases. If so, then some good will come out of that. I respect the Senators from Pennsylvania. This is not their nominee. This is the President's nominees. He chose this nominee. He had background checks done on this nominee. He is the one that submitted this name to the U.S. Senate. He asked us to vote on it. I am ready to vote. If people feel like we need another hearing to talk some more about it, so be it. I am ready to vote. The President asked us to vote. I am prepared to vote, and I am prepared to vote no. Thank you, Mr. President. Mr. SPECTER addressed the Chair.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I am pleased to join with my good friend from Arkansas, Senator Tim Hutchinson, in introducing the ``Dollars to the Classroom Act''. This is a critically important piece of education legislation, of which I am honored to be an original cosponsor. The ``Dollars to the Classroom Act'' will send funds supporting roughly thirty one K-12 education programs in a block grant to states, with the requirement that 95 percent of these funds go to local schools. This is a very simple concept. We should demand that 95 percent of the Federal money we spend on elementary and secondary education must be spent in the classrooms of our local schools. That's it. Let me be clear about one thing. This legislation does not reduce the funding for the schools. Rather, it makes sure that the tax monies our citizens give for education actually makes it to the classroom. Mr. President, I served as a public school teacher. My wife served as a public school teacher. And let me say this, there is nothing more special, than the moment when a young student and a teacher connect in the classroom. Unfortunately, there exists a complex, confusing, paperwork driven federal system that too often hinders rather than helps the students. Mr. President, this bill provides the badly needed resources to not only enhance these magic moments between students and teachers but it also guarantees that every single student and every single teacher will have the resources needed to make this all possible. Mr. President, this is how the bill works. Instead of sending the education dollars through the usual bureaucratic gauntlet--paying the bureaucrats at the Department of Education and the state education establishments--individual tax dollars would go directly to the states in a block grant administered by the Governor. Local school districts, parents, teachers, and local school officials could then use those funds for education priorities they think are most important. Mr. President, this will allow parents and local education officials to decide how to spend these dollars. They would decide their schools' priorities and, most importantly, how best to allocate these funds. There is another important reason for this legislation. Federal education programs and their grant processes have become so burdensome many local schools are not even applying for funds. Often our local schools and school officials are forced to spend a significant amount of their Federal education tax dollars just to apply for these funds. Let me give you an example. The Mobile County Public Schools system, my home county in Alabama, which contains 65,443 students in grades K- 12 was forced, on two different occasions, to hire grant writers at $50,000 a year just to help the school system apply for these federal grants. These grant writers were in addition to the many administrators, principals and teachers who are forced to dedicate their valuable time to filling out the paperwork associated with applying for these grants instead of educating the students of Mobile County. And there are countless other examples. The state of Ohio calculated in 1990 that over 50 percent of its paperwork burden was related to federal education programs, even though only 5 percent of its education revenues came from federal sources. A recent audit of the New York City public schools found that only 43% of their local education budget reaches the classrooms. A 1996 Heritage Foundation study of federal spending on elementary and secondary education found that only 85 cents of every education tax dollar sent to Washington, was returned to local school districts--that's school districts not local classrooms. According to the U.S. Department of Education, of the more than $15 billion allocated to its elementary and secondary education programs in 1996, over $3 billion went for purposes--like administrative overhead-- rather than the real needs of local school districts. The Superintendent of the Mobile County Public School system, Mr. Paul Sousa, supports this legislation for one simple reason: this legislation dedicates valuable dollars to the classrooms and eliminates the bureaucracy that has placed a stranglehold on his principals, his teachers, and his students. And I would say to all my colleagues, the ``Dollars to the Classroom Act'' will help to eliminate these scenarios and require that 95% of all Federal education dollars be spent in the classroom. Mr. President, I would like to end my comments by sharing with you a quote from President Clinton, concerning this very issue. On March 27, 1996, in a speech to the National Governors' Association, the President stated: ``We cannot ask the American people to spend more on education until we do a better job with the money we've got now.'' Mr. President, I fully agree. We can not continue to spend billions of dollars on federal education programs that don't even reach our students. We must demand accountability for the federal dollars we spend on education. We need to know where our education dollars are going and how much actually gets to the individual classrooms in Alabama and across this country. The ``Dollars to the Classroom Act'' will provide the hardworking parents and students of this country the resources and the accountability they deserve.

Mr. SESSIONS

Mr. SESSIONS. I think the Senator from Georgia is so correct. I think back on that example and I think that it really sort of symbolizes the difference between a totalitarian government where freedom is denied, where people are not allowed to worship, and are not allowed to be baptized, and the wonder of the democracy that we are blessed with having. I think also that it is fitting for us to recognize him in this manner. I have on my desk a plaque which is imprinted with one of President Reagan's quotes, a quote which I think is most appropriate especially as we discuss naming National Airport after him at this late point in his life. It says, ``There is no limit what a man can do or where he can go if he doesn't mind who gets the credit.'' I think it is time to give Ronald Reagan credit. This is a fitting tribute to him. I salute the Senator from Georgia for his efforts, and I support his steadfastness in that. Mr. COVERDELL addressed the Chair.

Mr. SESSIONS. Mr. President, I have the honor to speak on this legislation sponsored by the distinguished Senator from Georgia. I so greatly admire him. I admire his principle, integrity, ability, and passion for this issue. I think it is an important issue, and I am proud to be a cosponsor of this resolution. We ought to recognize people who have made great differences in this Nation's history. I think President Reagan is one of those people. I thought I would take a very few minutes to tell a story that illustrates how deeply and how important President Reagan's life is to the American people and to the people of the world. In 1993, I went on a church trip to Russia and spent a week there. Our group went to a small city of 40,000 people that is located 5 hours east of Moscow in an area where very few Americans were allowed in over the years because it was a security area in the Soviet Union. We went to the town of Sovetsk. I was able to stay with another American in the home of a Russian businessman who was beginning to develop a business in Sovetsk. The first night we arrived they were going to celebrate the baptism of their daughter. A Russian Orthodox priest appeared in his great robes. The mother, father, and the grandparents had come in from the Ural Mountains, and it was a goodly group of people there. It was a marvelous ceremony as the priest performed that baptism. As we had dinner afterwards the priest told us that since perestroika, since the fall of the wall, he had baptized 18,000 people in that town of 40,000. He told us that before the wall fell he was not allowed to baptize people. He said he was not allowed to wear his robes, and that the Soviet Communist authorities moved him around 6 months or so at a time so that he could not really get to know his congregation and so he would be unable to build the kind of rapport that is necessary. He discussed how he could now wear his robes, how he could now walk about town, how he could now meet with the mayor, and how he was now respected in the city in public affairs. For this priest and his congregation, it was now a great time. At the conclusion of that discussion my host proposed a toast to Ronald Reagan ``who made us believe in God again.'' Mr. President, I don't know if they missed the translation. But the heart of that was very, very real. President Ronald Reagan helped shape this world. He helped free millions of people from a totalitarian state. He called the Soviet empire an ``evil empire,'' and evil it was. Before we went to Russia, we spent time with a college professor who had spent 6 months there. He said, ``I used to teach that the United States and Russia were just like scorpions in a bottle. There is no difference between us.'' Now, however, he says that after having been there and after having met with young Russian people he has changed his mind. In the words of that professor, ``when I would talk in that fashion, the Russians looked at me like I was crazy. They said, `What are you talking about? You had all kinds of freedom. We had none. There was a great distinction between Russia, the Soviet Union, and the United States of America and the democracy that you have.''' Today that professor has come to believe that those young people had it right. Ronald Reagan personified that. He personified the collapse of the totalitarian empire. He gave his life to it. He articulated it better than any man that ever lived. His was a Presidency both in terms of domestic policy and foreign policy that ranks among the highest order of American Presidents. I think he deserves this recognition. I think it is very fitting that it be done on his birthday. I think it is very fitting that we recognize him while we are still blessed with his presence. I want to congratulate the Senator from Georgia for his articulate explanation and promotion of this legislation. I am delighted and honored just to have this moment to share this story with the people in this body and the people in the United States because I think it says in a very real way that this man symbolized the American democratic free enterprise victory over the totalitarian atheistic Communist government. I appreciate the leadership of Senator Coverdell and thank him for yielding me this time. Mr. COVERDELL addressed the Chair.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I would like to take a few minutes today in order to lay out my reasons for voting against the Fiscal Year 1998 Labor, Health and Human Services, and Education appropriations bill. Mr. President, when I was running for the Senate last year, there were two campaign promises that I made to the people of the great State of Alabama. First, I promised that I would work to reign in wasteful Washington spending and secondly, that I would work to bring Alabama values into the Washington public-policy debate. It was for these two simple reasons that I felt compelled to cast my vote against the Labor, HHS appropriations bill. The fiscal year 1998 Labor, HHS appropriations bill contained roughly $80 billion in spending for Washington social programs. This is an increase of roughly $6.2 billion from fiscal year 1997's bill. Now Mr. President, the average Alabamian, if they're lucky, sees a cost-of- living increase in their paycheck each year of around 2.8 percent. That's it, 2.8 percent. However, this bill increases Washington social spending by over 8 percent. That's an increase of almost three times the average Alabamian's yearly cost-of-living increase. That to me is unacceptable. I have spent many long hours looking through the merits of many of these programs. We have many good programs, with a proven track record, that need to be funded and supported. But Mr. President, the Labor, HHS appropriations bill we voted on also contained many social programs that are unproven or just too costly. The taxpayers of America deserve to know that their hard earned tax dollars are spent wisely. If we continue to raise spending faster than our economic growth--faster than the cost of living--then we are in danger of returning to the old tax and spend mentality that has nearly bankrupted this country. With great reluctance, I must vote ``no.'' There were several other provisions missing from this bill which also compelled me to vote against it. First, my tobacco amendment, added to the bill by the Senate on September 10, which would have limited any tobacco attorney's fees and required that all such fees be made public for inspection prior to the passage of any global settlement, was stripped during negotiations between the Senate and House of Representatives conference committee. These fees, in many cases, will be the largest fees in history and will be windfalls for these attorneys. These moneys would be better spent on health care for children. Second, an education provision, which I strongly supported, authored by my good friend from Washington, Senator Slade Gorton, was also stripped during the House-Senate conference negotiations. This amendment would have required the Secretary of Education to award certain funds appropriated for the Department of Education for kindergarten through grade 12 programs and activities directly to the local education agencies. This will allow them to use the funds for their greatest needs and reduce paperwork. I supported this amendment because I believe it is time to take control of our schools out of the hands of the well-intentioned individuals in Washington and instead put the control into the hands of the real experts--the teachers, principals, parents and the students of Alabama. Mr. President, this is another example of Government putting Washington values ahead of Alabama's values. The fundamental question is this: Will our children benefit more if Washington is in charge of their education or if their elected representatives are? Alabama values would support the local control of our schools while Washington values support the bureaucratic heavy handed federal control of our education system. Mr. President, in closing, let me say plainly I support many of the programs and services found in this bill. It was my sincere hope to have been counted among its supporters on the Senate floor. However in this era when families are struggling to get by, we simply must begin the process of controlling the growth of Washington spending. That is why I have decided to vote ``no.''

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I would like to express my gratitude to the diligent work of our leaders in the Senate Environment and Public Works Committee especially the chairman, Senator Chafee and ranking member, Senator Baucus along with the chairman of the Transportation Subcommittee, Senator Warner in crafting a comprehensive, 6 year transportation bill. The bill unanimously passed by the Senate Environment and Public Works Committee makes progress towards building a more equitable formula for distributing Federal transportation funds to the States. It is unfortunate Congress did not have the opportunity to debate this bill during this session of Congress although I look forward to building upon progress made by the committee when the Senate reconvenes in January. The law which authorizes our Federal transportation program expired on September 30 of this year. Thanks to the competent work of Gov. Fob James, and Jimmy Butts, the director at the Alabama Department of Transportation, and Don Vaughn, Assistant Transportation Director, I was alerted early on that if Congress failed to act on passing a transportation bill, critical transportation programs such as Interstate Maintenance, the National Highway System, and needed bridge repair throughout Alabama would cease by December. In addition, the Federal Department of Transportation would have been forced to shut its doors and transportation contractors would have been forced to lay off workers as Alabama and many other States curtailed or ceased awarding of transportation maintenance and construction contracts. To avoid this crisis, the Senate has enacted a short term solution to allow transportation projects to continue by providing additional funding and increased flexibility of Federal transportation funds to States. The temporary transportation resolution passed by the Senate on Tuesday will allow Alabama access to $174,469,000 for critical highway programs. This amount represents half the amount of Federal highway funds Alabama was able to spend in fiscal year 1997. In addition, the Alabama Department of Transportation will have the flexibility to transfer funds between various transportation programs so that planning, maintenance and expansion can continue as a comprehensive, long-term transportation bill is passed by Congress early next year. Once a new long-term transportation bill is passed, the Secretary of Transportation will offset each State's fiscal year 1998 funding to reflect the funds used by each State as a result of this extension. Again, I would like to personally thank and congratulate Senator Bond for putting this package together with our leaders of the Environment and Public Works Committee, Senator Chafee, Warner, and Baucus. While many of my colleagues and myself would have preferred a long-term solution to our transportation needs, this short-term extension will allow Alabama and all States to continue their transportation planning, maintenance, and construction until a new, long-term bill is negotiated and passed hopefully early next year.

Mr. SESSIONS

Mr. SESSIONS. There is an amendment at the desk submitted by Senator Feinstein, and I ask for its consideration.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I ask unanimous consent that the resolution be agreed to; that the preamble be agreed to; that the motion to reconsider be laid upon the table; and that any statements relating to the resolution appear at the appropriate place in the Record.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of S. Res. 151, submitted earlier today by Senators Warner and Ford.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I ask unanimous consent that the Senate now proceed to the consideration of calendar No. 264, H.R. 2564.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I rise to talk about the Bill Lann Lee nomination as Assistant Attorney General for Civil Rights. He is a good man, a lawyer of skill and experience. He is the son of an immigrant who has worked hard and done very well professionally and financially. However, his nomination is in the Senate Judiciary Committee. Many of his positions are outside the mainstream of current legal thought, and I believe we need to reject that nomination. Regretfully, I intend to vote no when it comes up before the Judiciary Committee. There has been some discussion and comments made that there have been scurrilous attacks against him. I just want to say that is not so. Certainly it is not so from the Senators who are members of the Judiciary Committee who have considered this nomination. Senator Hatch, the chairman of the Judiciary Committee, came to this body earlier this week. He made a very long, professional address, delineating his concerns about this nomination and why he had decided to vote no. He talked about legal issues, professional issues, positions of importance, and that is the basis of our concern--not personal attacks. This position is a serious position. Mr. Lee has been treated respectfully. I have been at every hearing he has attended, and I have been at every hearing in which his nomination has been discussed. It has been discussed on a high level, according to the highest professional standards of this Senate. That is the way it should be. But his position is an important position, so it is necessary that we ask important fundamental questions and that we get answers from him, and then once we get those answers, it is our responsibility, under the advice and consent responsibility of the Senate, to make a judgment as to how we should vote. I want to say we must protect the civil rights of all Americans. We cannot, however, utilize civil rights laws as a tool to favor one group over another. We need to know what Mr. Lee thinks on what the issues are facing America. He is an advocate. We know that. I respect that. But we need to go beyond that. How deep is his advocacy? Can he take it away and can he be an objective and effective administrator of the civil rights policies of the U.S. Government, or does he maintain some of his advocacy views that are outside the mainstream of American legal thought? That is why, I submit, he has been asked a number of questions and why we have taken this seriously. This position has been vacant for 18 months. The President just recently submitted his nomination. Our committee has moved promptly to consider that nomination, and we brought it up last week for a vote. His supporters, perhaps fearing they did not have the votes, asked it be put over again for another week. I expect we will take that up Thursday of next week. Some have suggested that if there are not enough votes in the committee to confirm this nomination, that we ought to, regardless of that, send the nomination to the floor. As a new member of the committee, I thought we had an interesting discussion about that. The Members who felt they were on the losing side raised quite a number of questions and earnestly argued for their position. Of course, this is a decision that we can make, and we can make any decision we choose, and they cited a number of historical examples why we should do that. Senator Hatch has been a member of the committee for a number of years and delineated the history. There has been no Executive nominee--and this nominee would be part of President Clinton's administration--reported out of that committee other than with a favorable recommendation since 1953. In fact, a number of Democratic Senators on the committee were the very ones who just a few years ago voted not to send the nomination of Bill Lucas, an African-American who had been nominated by President Reagan to be civil rights chief--they voted not to send his nomination out. And they did the same with William Bradford Reynolds, another nominee of President Reagan, who was not sent forward, on their objection. Therefore, they took the position--and I think one that is quite proper--if they so choose and if our committee so chooses, that the committee makes a recommendation as to whether or not a nomination should go forward. Let me say there have been suggestions that scurrilous complaints and attacks have been made. I hate to hear that, but I say they have not come from our side. I say there have been some unwise and intemperate remarks by those who are supporting the Lee nomination in this U.S. Senate. They have, in effect, said, ``Agree with us and you report out this nomination, or we will say you are against civil rights, we will accuse you of being against African-Americans, we will say you are against women, we will say you are against Chinese-Americans.'' They would, in fact, play the race card. Sad to say, they have done just that. Mr. President, let me share with Members of this body and the American people some of the things that were said by Senators in this body about those of us who have concerns about this nomination. The Democratic leader had a press conference earlier this week, and he said, ``The far right doesn't want the Civil Rights Division filled because they don't want civil rights laws enforced.'' Now, I submit that is a sad thing to say. That is an extreme thing to say, that the chairman of our committee, Senator Orrin Hatch, who has worked hand in glove with this administration to confirm every nominee they sent forward for the Department of Justice, except this one. This is the only one he has objected to. It is extremely unfair to say that we don't want civil rights laws enforced because we want to question this nominee and we believe he is outside the mainstream of current legal thought. Senator Kennedy said, ``It's wrong for Republicans to hold him hostage to their anti-civil-rights agenda.'' I'm for civil rights. I believe in that. The other Members do. We just need to talk about what we really mean by the words ``civil rights.'' Do civil rights mean equality for all as we traditionally thought? Or do we go to a new definition of civil rights that means preferences and advantages to one group or another group because of the color of their skin? We are not against civil rights. Senator Kennedy went on to say, ``It would be an outrage for a small band of anti-civil-rights Republican Senators to bottle up this nominee. A vote against Bill Lee is a vote against civil rights,'' he said. Another Senator, Senator Boxer said, ``By opposing Bill Lee, I think the Republicans are sending a signal to every minority in this country, to every woman in this country, that, frankly, they don't believe in equal opportunity for everyone.'' That hurts me, Mr. President, to hear a Member of this body make such an extreme statement as that. I really think it was unnecessary and goes beyond what ought to have been said. We can disagree whether or not this nominee ought to be confirmed. But I think we ought to all respect each other's views and opinions more than that. So I am concerned about that. Another Senator, Senator Mikulski, was also aggressive in her remarks. This is how it was reported in the Washington Times the other morning on the front page: Congressional Democrats, in a bid to save the nomination of a Chinese American as assistant Attorney General for Civil Rights, yesterday accused Republicans of racism. ``I don't think the United States Senate should be a forum for attacking Chinese Americans,'' said Senator Mikulski. ``We don't want Bill Lann Lee to be the Anita Hill of 1997,'' she said. This is what the paper reported: Just after finishing leveling fire, the Maryland Democrat walked over to Senator Edward M. Kennedy and said under her breath, ``I hated to do that, but we had no choice.'' I am glad at least to know that she was reluctant to make those comments. I think she well should have been because I intend to take, and every member of this committee intends to take, this nominee seriously. We need to give him a fair hearing. He needs to be treated respectfully. But if his ideas are outside the mainstream of current American law, outside the direction we believe this Nation ought to go in civil rights, we have a responsibility to reject the nomination, and that is what I intend to do. I intend to fulfill my responsibility. I want to say right now that I don't intend to be intimidated by attacks of that kind. I am going to do what I believe is right for this country. Let me read you what some of the testimony was at hearings about this nominee. Mr. Gerald A. Reynolds, an African-American, president of the Center for New Black Leadership, testified that he strongly opposed the nomination of Mr. Lee. He said: If confirmed as Assistant Attorney General, Mr. Lee's background suggests that no democratic principle, controlling legal authority, nor legal standard will prevent him from furthering his particular ideological agenda. Further he said: For the last 30 years, traditional civil rights organizations have used civil rights laws as a weapon to extract benefits for racial minorities, no matter what the cost. Mr. Lee has spent most of his professional life doing that same thing. Mr. Lee's legal defense fund sought to overcome the will of the citizens of California by persuading the ninth circuit to affirm Judge Henderson's ruling against Proposition 209. I would argue that the legal defense fund's attempts to nullify Proposition 209 constitutes a direct assault upon our democratic principles. The legal defense fund's case against Proposition 209 rested on a thin reed. Basically, it rested upon two cases that are easily distinguishable from the facts surrounding Proposition 209. I think we will talk about Proposition 209 in a minute. But just to point out, that is a civil rights initiative in California that said people should be treated alike regardless of the color of their skin, and it mirrored almost exactly the 14th amendment to the Constitution of the United States and the Civil Rights Act of 1964. Mr. Reynolds goes further: There are other examples. We can look to the lawsuit in Los Angeles. The Los Angeles County Metropolitan Transportation Authority decided to increase its bus fares and eliminate monthly bus passes. Mr. Lee's legal defense fund lawsuit alleged that the MTA action violated the civil rights laws and the Constitution because they had an adverse impact on minorities and poor people. Mr. Reynolds continues: We can debate whether it was a good idea to eliminate some of the benefits that the citizens of Los Angeles enjoyed, but I think it is a stretch to conclude that a policy decision such as raising a bus fare and eliminating bus routes and eliminating bus passes constitutes a constitutional violation. He went on to note that: The lesson that we should have walked away with is that race is a toxic circumstance, and that it is wrong to distribute benefits and burdens on the basis of race. I questioned Mr. Reynolds and I asked him about busing and how people in the minority community feel about busing. Mr. Reynolds replied: I think it is clear that most parents are concerned with the quality of education that their children receive, and most parents, black and white, do not care. Well, actually they prefer that it be a neighborhood school. More importantly, I think time has shown that forced busing has been an unmitigated disaster. Those were the words of Mr. Reynolds. I further asked him, had he seen cases like the Houston busing case, on which Mr. Bill Lann Lee was the attorney, and where lawyers, professional litigators, who were involved in these issues as a business, their livelihood, continued to pursue remedies that the children and the parents of the children do not want. Mr. Reynolds answered: ``Yes.'' Well, that was from Mr. Gerald Reynolds, an African-American citizen of this country, opposing Bill Lann Lee. Is he against African- Americans? I submit not. Is he against women? I submit not. Is he against Chinese-Americans? I submit not. Is he against civil rights? I say no. He's for civil rights. There is no doubt about that. Let me read you this excerpt from the testimony, in June, of Charlene F. Loen. Like Mr. Lee, she is a Chinese-American, and she gave some of the most poignant testimony I have heard before our committee. She actually came to tears. She talked about her son, Patrick, who wanted to attend Lowell High School in San Francisco, but he was prevented from attending that public high school because of a racial quota set up under a Federal court consent decree in 1983. Under the consent decree, she said: Hard work and good grades are not always enough. My son Patrick found out the hard way. I am quoting again: In 1994, Patrick applied to Lowell, with a test score of 58 out of a 69. That year, Lowell set the minimum score for Chinese students at 62. But then Lowell set the minimum scores for white students and other Asians at 58. Lowell set the minimum scores for blacks and Hispanics lower than that. So Patrick could have gotten into Lowell if he were white, Japanese or black. He was rejected because he was Chinese American. She went on: Discipline, hard work, and academic achievement should be rewarded. Patrick studied hard, he got the grades, and he was rejected because he is of Chinese descent. She went on: The year Patrick was rejected, the San Francisco school district announced the opening of a new academic high school, Thurgood Marshall. I went to the school district to apply for Patrick. Right away, the person at the office asked me, ``Is Patrick Chinese?'' I said, ``yes,'' and she said that the slots for the Chinese were already taken at Thurgood Marshall. I asked how could that be because the application period was not even over yet. She shrugged and said that that is just what the consent decree requires. Patrick also applied at three other high schools--Wallenberg, Washington, and Lincoln--and all three rejected him because they already had too many Chinese under the consent decree. Those were her words. That is not the way, I submit, we ought to operate our Government today. She felt very strongly about that. And this is a Chinese-American testifying before our committee. In November, she said the Federal judge who approved the consent decree approved a payment by the State of California of over $400,000 in legal fees to the NAACP, the legal defense fund, Bill Lee's unit, for opposing the lawsuit; in other words, the lawsuit that she had filed to try to get her son to be able to go to the school of her choice that he qualified to by objective standards. A judge denied a motion to end the consent decree. This is how she concluded her remarks. Under the consent decree can you be denied admission to public school because of your race by treating people as members of racial groups rather than as individuals with the same rights before the law. The consent decree has dashed the hopes of children, denied my son and many others the right to opportunities they earned through hard work and diligence, condemned children to needless busing, prevented parents from being involved in their school and thereby holding school administrators accountable, and divided the people of San Francisco. Divided the people of San Francisco. This is the way things have been in San Francisco for the past 14 years. Is Mrs. Loen against civil rights? I submit not. Is she against Chinese-Americans? No, she is not. She is a Chinese-American. Is she against women? No. Is she against minorities and civil rights? No. Let me read this testimony before the Judiciary Committee's Subcommittee on the Constitution Federalism, and Property Rights chaired by Senator John Ashcroft. This is the statement of Senator Mitch McConnell of Kentucky. He was talking about the ``legally ordained'' set-aside in Federal highway funding that mandated a certain percentage of the money be spent toward minority contractors. This is what Senator McConnell recounted: Michael Cornelius recently spoke poignantly to this point before the Constitution Subcommittee in the House of Representatives. He explained that his firm [his business] was denied a Government contract under ISTEA [a Federal program] even though his bid was $3 million lower than his competitor's. Mr. Cornelius' bid was rejected because the Government felt that the bid ``did not use enough minority- or women-owned subcontractors.'' To comprehend the full extent of the Government's unconstitutional policy, you must understand that the Cornelius bid proposed to subcontract 26.5 percent of the work to firms owned by minorities and women, and, of course, the Government concluded that even that was inadequate. This is the kind of matter that the Adarand decision dealt with, and the Adarand decision is a decision Mr. Lee says he believes is bad constitutional law. But that is the Supreme Court of the United States, which in the Adarand decision set forth standards that basically demonstrate that these kind of set-asides are not fair. They are in violation of the equal protection clause of the Constitution of the United States. Mr. President, I would also like to quote one more witness who testified. This is Mrs. Sue Au Allen, a Chinese-American, the President of the United States-Pan American Chamber of Commerce, a national nonprofit organization representing Asian-American business men and women, and other professionals. She is a very impressive lady, and was very direct in what she had to say about the Lee nomination. She said: Mr. Lee's record gives me grave concern, Mr. Chairman. As a nation's top civil rights law enforcement official, he will advocate certain policies on race and gender issues that are contrary to constitutional guarantee of equal right and opportunity for all Americans and that will have a deleterious effect on racial and gender harmony in general and on the rights of many individuals in particular. She went on to say: When I look at the arguments he has made in the last 20 years to determine his understanding of what equal protection requires, I learned that he does not believe in civil rights for all. He believes in quotas, set-asides, and preferences based on race and gender. This is not my belief. The person who believes in civil rights for some based on race and gender is a wrong person for this job. She continues: And his organization's defense of continuing judicial control of the desegregation of Lowell High School in San Francisco for high admission standards required of students whose admissions are kept at 40 percent . . . She particularly mentioned that. This was just a few weeks ago. It is the same comment made by Mrs. Loen that I read earlier about Lowell High School in San Francisco. Mrs. Allen continues, describing the assault on Proposition 209, the California civil rights initiative. This is what she said: To bolster the assault on 209, Mr. Lee's Legal Defense Fund recruited the Federal Government as his ally. First, he filed a complaint with the U.S. Department of Labor's Office of Federal Contract Compliance Program and said that the decline in minority admissions at the University of California violates affirmative action rules imposed on Federal contractors. This is the university: It argued that the lowered admissions reduced the number of minority graduate students that the university might hire in complying with Federal racial preference programs. This pushes legal theory, I submit, beyond any reasonable standard. This was for Mr. Lee's use. He is a private attorney now. He gained the support of his allies in the Department of Labor. Quoting Mrs. Allen: Second, although no student had ever complained about discrimination because of Proposition 209 or the University of California regents' vote to end racial preferences in admissions, Mr. Lee's Legal Defense Fund filed a complaint with the United States Department of Education attributing to discrimination the decline in minority admissions and enrollment at select University of California campuses. So, Mrs. Allen is making a significant point. What she was saying was that even though a private attorney, Mr. Lee has been adept at inducing the Federal Government to join with him in his legal theory. If confirmed in this position, he will, in fact, be the Federal Government, and he will have 250 attorneys at his disposal to send out on whatever cause he might deem appropriate. She goes on to say this: A San Francisco school district has been under a consent decree since 1983 because the Legal Defense Fund brought a suit to desegregate the school. That is, since 1983, they have had a Federal judge monitoring that school system, I submit Mr. President. She continues: Under that decree, Lowell High School, a magnet school, where competition for admission is fierce, operates with a 40-percent cap on Chinese students. In addition, the school sets higher admission standards for Chinese students than for any other race or ethnic group. Recently, several Chinese students and their parents challenged that consent decree. But the Legal Defense Fund . . . Which I submit is Mr. Lee's organization which he headed in the west: . . . the Legal Defense Fund has actively defended the continuing judicial control over the district in the name of desegregation, this despite the adverse impact on Chinese students who would otherwise be admitted to Lowell and against the strong opposition of their parents. Chinese-American parents. Mrs. Allen said: When the Legal Defense attorney called the consent decree segregation by inclusion, to me it is desegregation by discrimination and exclusion. These examples raise a very important question. As head of civil rights enforcement, will Mr. Lee argue for continued forced busing? This lady Sue Au Allen, president of the Pan American-Asian Chamber of Commerce--is she anti-Chinese? She is of a Chinese descent. Is she antiwomen? Is she anticivil rights? Is she antiminority? I submit no. Serious questions have been raised about this nominee. This use of scurrilous attacks has not been coming by those of us who are concerned about nominations. We are talking about real issues. We are talking about real cases. We are talking about the position of the U.S. Department of Justice and what kind of position it will be taking in these cases as the years go by. Those who oppose him, however, have been intemperate at best in those remarks, and I hope and pray that they will evaluate that and be more responsive, be more respectful of their colleagues in the future. Let me say this. Incivility is not acceptable. In my opinion, the Judiciary Committee over the past decade, over 20 years, 15 or 20 years, has gone through a series of confirmation battles that have not been healthy. They have not reflected well on the Senate, and they have not done well in analyzing whether or not people should be confirmed. I for one believe we ought to do better. I believe we ought to have a higher standard. I believe we ought to dig in seriously to the nominees and what they believe, their integrity, their ability and their legal philosophy. And I think we can do that and sometimes we are going to say no. We hate to. It is no fun to say no to a person who would like to have a position of prominence. But that is our position of responsibility and we must face up to it. Let me just say this. Why is it that I am concerned with this nomination? There has been a lot of talk about the California civil rights initiative, Proposition 209, a very, very important event in American history. Basically, what the people of California said is we do not believe in preferences. We, in effect, believe that in our State we want the law to be very similar and basically the same as what the 14th amendment to the Constitution of United States says. So they really encapsulated the 1964 Civil Rights Act, and the people of California passed that by a significant margin. Mr. Lee's organization immediately joined in a challenge to that proposition and in fact filed a brief. It is one thing for him to oppose the proposition when the people are voting on it, to campaign about it, but he went further than that. His organization joined in the litigation to have Proposition 209, which says almost the same thing as the Constitution of the United States, declared unconstitutional, a perfectly legitimate referendum declared unconstitutional. And this is what the court of appeals, the Ninth Circuit Court of Appeals held when they considered Mr. Lee's opinion on Proposition 209. They said this. This is a Federal court: As a matter of conventional equal protection analysis -- Equal protection clause of the 14th amendment-- there is simply no doubt that Proposition 209 is constitutional. Those are the words of the ninth circuit, the most liberal of the eleven circuits in this country. Everyone suggests that. That circuit flatly rejected Mr. Lee's position, saying there is no doubt about it. And what is troubling is here you have an attorney seeking to attack the will of the people by bringing in a challenge to the constitutionality of an act that had no basis. The court continued to say: After all, the goal of the 14th amendment, to which the Nation continues to aspire, is a political system in which race no longer matters. The 14th amendment, lest we lose sight of the forest for the trees, does not require what it barely permits. In other words, it does not require, the 14th amendment does not require preferences based on a person's race. It barely permits it. Only in the most extreme circumstances, only under the most strict scrutiny will a court ever approve an event in America in which we give a benefit to one person, thereby denying it to another simply because of their race. So we have to be honest about this. It is time for us to talk about it seriously. We believe--I certainly do--in affirmative action, to go out and affirmatively solicit every person to apply, to seek out the best talent, to give people every chance to succeed, but we cannot tolerate quotas and set-asides and things of that nature. Well, that is the important issue, Proposition 209, and Mr. Lee, when questioned about it, says it continues to be his position. And at the Civil Rights Division of the Department of Justice he would be prepared to file a brief on behalf of the United States of America in the Supreme Court to declare it unconstitutional. But he would not get that opportunity because the Supreme Court refused to even review the Ninth Circuit Court of Appeals ruling. The Supreme Court of the United States let it stand, denying certoriori, in effect saying this is a matter not even worth our time to consider because the law is so clear, agreeing totally with the ninth circuit's opinion. Well, there is another matter of importance, and that is the Supreme Court decision, recent decision in the Adarand case. Adarand dealt with the set-asides in Federal law, that in effect tell Federal Government highway administrators that they must set aside a certain percentage of Federal contracts for minority contractors. I earlier read the comments of Mr. Cornelius who was the low bidder by $3 million on one of those contracts and had an agreement to hire 25 percent of his subcontractors who would be minorities, and that was rejected because it was not generous enough. This is the kind of issue with which we are dealing. Adarand said basically that that cannot continue. I would suggest that the Supreme Court is very seriously thinking about this issue, and I believe the Supreme Court has looked down history in America and they have thought about it and they are saying we have got to stop, we have got to get out of this business of disbursing the goods and services of America based on what group you belong to. This is not the kind of principle upon which our country was founded, and that is what they meant by the Adarand decision, and that's why legal scholars consider it of thunderous importance, an extremely important decision. OK. How does Mr. Lee feel about that? He opposed the Adarand decision. I asked him, does he still believe it is bad law? He says he believes it is bad law. He testified he does not agree with it. And he said something that is particularly troubling about it. In his testimony, Mr. Lee stated that Adarand allowed affirmative action programs, which in this case means a kind of set-aside, in effect quotas. Sometimes affirmative action means affirmative outreach. Sometimes it means racial preferences and quotas. It just depends how it is used. But in this case we are talking about Adarand which had a set-aside in the law to favor some people. He said he thought they were legal under the Adarand decision if conducted in a limited and measured way. That is not, Mr. President, what the Court in Adarand said. The Court in Adarand said that set-asides like this highway program are presumptively unconstitutional and can never be allowed except under the strictest of scrutiny. It is for the most significant of reasons that would justify these kinds of actions. So what troubles me about that, and I know Senator Hatch raised it, is it suggests that as the top civil rights lawyer in this country he would not interpret Adarand the way the legal scholars do but would interpret Adarand in a way that would justify him applying the resources of the 250 attorneys in the Department of Justice to undermine the Adarand decision the Supreme Court has rendered. So let me ask, am I against civil rights to say that? Do I not believe in civil rights to say that I agree with the Supreme Court of the United States, I agree with the ninth circuit of the United States with regard to Proposition 209? I submit not. I believe in civil rights for everyone and I think most Americans do. I wanted to quote from the words of Congressman Charles Canady who testified before the Subcommittee on Constitution, Federalism and Property Rights of the Judiciary Committee just a few days ago actually. And this is what he says, Congressman Canady from Florida: If we go back to 1961, when President Kennedy promulgated the original Executive order on affirmative action, it was clear in that Executive order that steps were to be taken to reach out to all parts of the community to bring people into the pool of applicants for opportunities, but that people were to be treated without regard to their race. That specific language was used in the Executive order. So I believe that Senator McConnell's proposal encompassing a number of outreach elements is [what we should do]. Congressman Canady continued: Now, this system of set-asides [which was legally challenged in the Adarand decision] that is in place has been described as a remedial system. The problem with this system, however, is that it provides benefits to people who have not demonstrated that they are victims of any specific wrongdoing and it imposes cost on individuals who have been demonstrated to be guilty of no wrongdoing themselves. Do we get that? It provides benefits to people who do not demonstrate that they have been harmed and it provides costs on those who have not been demonstrated to have done anything wrong. Is it against civil rights to think such a policy is not good? Congressman Canady continued, I think saying it well: I believe if we step back from this system [step back, like the Supreme Court is doing] which was put in place with the best of intentions [these set-asides and preferences and quotas] we have to conclude on the basis of our history as Americans that racial distinctions are inherently pernicious. It is fundamentally wrong [Congressman Canady continued] for our country to divide this country into groups based on race and gender and then award benefits to some people because they belong to the right group and deny benefits to other people because they belong to the wrong group. That is inconsistent with our fundamental American values. It is inconsistent with the way our Government should treat its citizens. He concluded: I believe that the American people are becoming more and more weary of this failed system of race and gender preferences. They want to reaffirm the promise of America, that all Americans will be treated as individuals who are equal in the eyes of the law. Well, I thought a good while about this. I think it was important to do so. I will just say this. We cannot end discrimination by practicing discrimination. That is fundamental. Make no mistake, when you benefit one person because of the color of his or her skin you are depriving another person because of the color of his or her skin. It is just that simple. It can be no other way. And the courts are agreeing with this. And Mr. Lee is outside the mainstream of judicial thought in America today. His opinion, opposing the most important Adarand decision, represents that he opposes the position of the Supreme Court of the United States. For that reason I feel compelled to vote ``no'' on his nomination. I yield the floor. _______________________________________________________________________

Mr. SESSIONS

Mr. SESSIONS. I know there may be some agenda items that are necessary for other Members of the Senate to complete tonight. If so, I am happy to yield at an appropriate time.

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

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I ask unanimous consent that when the Senate completes its business today it stand in adjournment until the hour of 10 a.m. on Monday, November 10. I further ask that on Monday, immediately following the prayer, the routine requests through the morning hour be granted, and the Senate proceed to a period of morning business for not to extend beyond the hour of 10:30 a.m. with Senators permitted to speak for up to 10 minutes each.