Jim Talent

Mr. TALENT

Mr. TALENT. Mr. President, I want to read an editorial from the February 18 issue of the Washington Post. It sums up the case better than or as well as I can: The Senate has recessed without voting on the nomination of Miguel Estrada to the U.S. Court of Appeals for the D.C. Circuit. Because of a Democratic filibuster, it spent much of the week debating Mr. Estrada, and, at least for now, enough Democrats are holding together to prevent the full senate from acting. We all know a filibuster is underway here, an obstruction tactic. That is not from the editorial. That was my editorial comment. The arguments against Mr. Estrada's confirmation range from the unpersuasive to the offensive. He lacks judicial experience, his critics say--though only three current members of the court had been judges before their nominations. He is too young--though he is about the same age as Judge Harry T. Edwards was when he was appointed and several years older than Kenneth W. Starr was when he was nominated. Mr. Estrada stonewalled the Judiciary Committee by refusing to answer questions--though his answers were similar in nature to those of previous nominees, including many nominated by Democratic presidents. The administration refused to turn over his Justice Department memos--though no reasonable Congress ought to be seeking such material, as a letter from all living former solicitors general attests. He is not a real Hispanic and, by the way, he was nominated only because he is Hispanic--two arguments as repugnant as they are incoherent. Underlying it all is the fact that Democrats don't want to put a conservative on the court. Laurence H. Silberman, a senior judge on the court to which Mr. Estrada aspires to serve, recently observed that under the current standards being applied by the Senate . . . I ask you to listen carefully to this. . . . being applied by the Senate, not one of his colleagues could predictably secure confirmation. He's right. To be sure, Republicans missed few opportunities to play politics with President Clinton's nominees. But the Estrada filibuster is a step beyond even those deplorable games. For Democrats demand, as a condition of a vote, answers to questions that no nominee should be forced to address--and that nominees have not previously been forced to address. If Mr. Estrada cannot get a vote, there will be no reason for Republicans to allow the next David S. Tatel--a distinguished liberal member of the court--to get one when a Democrat someday again picks judges. Yet the D.C. Circuit--and all courts, for that matter--would be all the poorer were it composed entirely of people whose views challenged nobody. Nor is the problem just Mr. Estrada. John G. Roberts Jr., Mr. Bush's other nominee to the D.C. Circuit, has been waiting nearly two years for a Judiciary Committee vote. Nobody has raised a substantial argument against him. Indeed, Mr. Roberts is among the most highly regarded appellate lawyers in the city. Yet on Thursday, Democrats invoked a procedural rule to block a committee vote anyway--just for good measure. It's long past time to stop these games and vote. I ask my colleagues to consider carefully--and I know there have been abuses of this process on both sides of the aisle--but I ask my colleagues to consider carefully whether, in the name of the Constitution, in the name of the obligation of this Senate to go on to other things and resolve them, in the name of comity and the traditions of this body, the Washington Post isn't right, and whether it isn't long past time to stop these games and vote. I yield the floor.

Mr. TALENT. When I was growing up, there was a tradition in the Senate that I observed as an outsider, of course, about how the Senate handled its constitutional function of giving advice and consent for presidential nominees. The Senate pretty much understood on the basis of a bipartisan consensus that its role was secondary, that its power was a check rather than a primary power to appoint people, either to the executive branch or to the judicial branch. I observed that Senators pretty much voted to confirm Presidential nominees if they believed those nominees were competent and if they believed those nominees were honest, and they did not inquire too greatly of the nominees' philosophy for the executive or into the nominees' jurisprudence for the legislative. There would be flaps or personal problems, but basically that was the role the Senate played and the traditional understanding of its constitutional function. Unfortunately, I think we will all agree, that consensus has broken down over the last few years. We will all agree that both sides have some responsibility for that consensus breaking down. What we are experiencing now from the Senators who are opposing and filibustering the Estrada nomination is so extreme given the past traditions of the Senate that it threatens the spirit and, I argue, even the letter of the Constitution, and it threatens the ability of the Senate and the integrity of the Senate to do the work of the people. Let me go into that a little bit. First of all, I take it from my understanding of the debate that the Senators who are opposing Mr. Estrada are not questioning his abilities as a lawyer or his honesty or integrity as an individual. I appreciate that. This is not a personal attack on Mr. Estrada. No one is saying he is unqualified as a lawyer. No one is saying he is dishonest in terms of his professional dealings or dishonest as a man and, indeed, you could not say that based on his experience which is clearly well known after the hours of debate we have put into this nomination. He arrived in this country knowing very little English. He worked his way up, if you will. He was a leader in his law school class. He was on the Law Review. An achievement he was able to get, as not all of us were able to get, he clerked for an outstanding judge, a Democratic appointee on the Second Circuit, and then on the Supreme Court, and did an outstanding job in the Solicitor General's Office, according to his supervisors of both parties. No one is questioning his abilities or honesty, as I understand it. As I understand, no one is saying they think he is not competent or honest in the sense of the standard that traditionally had been applied. What they are saying is this. They are saying, first of all, they will vote against the nominee, even to an appellate court, because they disagree with that nominee's jurisprudence, which is, itself, a step beyond what the Senate ever did in the past. But they are going beyond that. They are saying they will vote against the nominee, even to an appellate court, not just because they disagree with his jurisprudence, but because they suspect they might disagree with his jurisprudence. And if he answered questions no other nominee who worked for the Solicitor General's Office has ever been expected to answer, and which they should not have to answer, given the need for the integrity of the executive branch, but they are going beyond that. The opponents on this floor of the Estrada nomination are not just saying they will vote against nominees if they disagree with their jurisprudence, or vote against them if they suspect they might disagree with their jurisprudence; they are saying they are not even going to allow a vote on a nominee even to an appellate court if they suspect they might disagree with that nominee's jurisprudence. I ask my colleagues, I beg my colleagues who are opposing this nomination, to consider what this new standard, if it were to be adopted by the Senate as a whole, would mean for the Constitution, would mean for the Senate, and would mean for Estrada, as well. As I said, the Constitution assigned, we can all agree, the primary power of appointment to the President. Yet the Constitution shares some of that power with the Senate and that is not unusual. Even though we have a separation of powers, there are a number of instances where the executive is given a little legislative power, or the legislative is given a little executive power. For example, when the President is given the power to negotiate treaties and conclude them with foreign countries but subject to the requirement that two-thirds of the Senate ratify those treaties. So the Senate is given, in effect, a little executive power. The Framers of the Constitution knew how to provide for the Senate to exercise the executive power they gave it by a supermajority vote when they wanted to provide that. When the Framers said, we want to actually take a little bit more power away from the President, they said, we are not only going to require that the Senate ratify treaties but we are going to require that they ratify them by a supermajority vote, a two-thirds vote. The Framers knew how do to that when they wanted to do it. The assumption is they didn't want to take that extra measure of power away from the executive. Yes, they wanted to share the power of appointments with the Senate, as several colleagues have said. They are correct in saying that. The Senate is a partner in this process. But according to its traditions, it has always been a junior partner. According to the spirit of the Constitution, it exercises this partnership by a majority vote and not a supermajority vote. If we adopt the tradition in this body that we will filibuster nominees, if we suspect we might disagree with their jurisprudence, we are in effect saying it will require 60 votes for this body to confirm a judicial nomination. That, I submit to you, is a usurpation of the executive authority as granted under the Constitution. It is a shift in constitutional authority away from the executive and to the legislature--and not even to the Congress as a whole but to the Senate. As much as I stand up for the Senator from New York in saying as much as we have to stand up for the prerogatives and the authority of the Senate under the Constitution, our first responsibility is to the Constitution and to the distribution of powers, as the letter of the Constitution indicates and as the traditions of this Senate have always confirmed. I am deeply concerned. If we were to adopt the standards being applied here to Miguel Estrada across the board, we would be doing something which is unconstitutional and which violates the spirit and I believe the letter of the Constitution as well. My second concern is that this kind of a filibuster under these circumstances will poison the operation of the Senate on other matters. The filibuster, whatever you think of it, is a power that should be reserved for issues of only the greatest seriousness. I am not saying an appellate court nomination isn't important, it is important, but it is an appellate court nomination. Mr. Estrada, if he is confirmed to this post, whatever my colleagues may suspect his jurisprudence might lead him to do, is not going to change settled interpretations of the Constitution of the United States that can only occur on the Supreme Court level. And to haul out the nuclear weapon, if you will, of a filibuster on an issue that, while important, is not of the first letter of importance undermines the integrity and the ability of this Senate to pull together on issues that are of the first importance. I agree with the Senator from New York. We need to get on to issues of health care. We need to get on to issues of education. We need to get on to issues of defense and of tax relief to create jobs. All of these things are very important. That is why we should not filibuster an appellate court nomination. Allow a vote at least, I ask my colleagues. Let me say finally that I am concerned about the effect of this on the justice that we as a body and as Americans owe to the man whose interests and whose career are at stake here. Miguel Estrada is, after all, a person. Sometimes the great forces of history, of cultural division, and focus on personal disputes involving broader issues come to focus on one man or one woman. We have seen that happen sometimes in our history. And it may be unavoidable. But we should always keep in mind that we are dealing with a human being, a person who has done his best by his life to keep his obligations to his colleagues and to his country--a person who has excelled by any standard. None is questioning that--a person who has conducted himself with integrity and has done so in a town where it is sometimes difficult to conduct yourself with integrity. And his professional future is hanging, if you will, on a thread. We ought to consider what is just to him. He deserves this post. He has worked hard for it. His qualifications qualify him for the post. We should at least give him a vote. That is why the newspapers and the opinion of this country for the last week or so have been decidedly in favor, if not of Mr. Estrada and I think most of the opinion of the country has indeed be in favor of confirming him for the reasons I have indicated--but at least in favor of giving him a vote. I am not going to read all of the editorials, certainly. I ask unanimous consent to have printed in the Record an editorial of February 7, 2003, from the St. Louis Post-Dispatch, one my hometown newspapers, and also a letter--they may already be in the Record--and one in the New York Daily News by Gov. George Pataki.

Mr. TALENT

Mr. TALENT. Mr. President, if there is no further business to come before the Senate, I ask unanimous consent that the Senate stand in adjournment under the previous order.

Mr. TALENT

Mr. TALENT. I ask unanimous consent that a member of my staff, Christopher Papagianis, be granted floor privileges.

Mr. TALENT

Mr. TALENT. Mr. President, I ask unanimous consent that the Senate return to legislative session.

Mr. TALENT

Mr. TALENT. Mr. President, I ask unanimous consent that the Senate proceed to a period for morning business.

Mr. TALENT

Mr. TALENT. Mr. President, on behalf of the majority leader, and for the information of all Senators, tomorrow the Senate will begin its 10th day of consideration of the Estrada nomination. Unfortunately, my colleagues on the other side of the aisle continue to prevent us from proceeding to a final vote on this extremely talented and well- qualified nominee. The majority leader has said Members should prepare for full days and evenings as we hope to bring to a close debate on this nomination. Rollcall votes are, therefore, expected during tomorrow's session.

Mr. TALENT

Mr. TALENT. Mr. President, I ask unanimous consent that the Judiciary Committee be discharged from further action on S. Res. 65 and that the matter be referred to the Committee on Rules and Administration.

Mr. TALENT. Mr. President, I ask unanimous consent that the Finance Committee be discharged from further consideration of S. 389 and that the bill be referred to the Committee on Health, Education, Labor, and Pensions.

Mr. TALENT

Mr. TALENT. Mr. President, as in executive session, I ask unanimous consent that the injunction of secrecy be removed from the following treaty transmitted to the Senate on February 25, 2003, by the President of the United States: Second Additional Protocol Modifying Convention with Mexico Regarding Double Taxation and Prevention of Fiscal Evasion, Treaty Document No. 108-3. I further ask unanimous consent that the treaty be considered as having been read the first time; that it be referred, with accompanying papers, to the Committee on Foreign Relations and ordered to be printed; and that the President's message be printed in the Record.

Mr. TALENT

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

Mr. TALENT

Mr. TALENT. Mr. President, if there is no further business to come before the Senate, I ask unanimous consent that the Senate stand in adjournment under the previous order.

Mr. TALENT

Mr. TALENT. Mr. President, on behalf of the majority leader, and for the information of Senators, tomorrow the Senate will once again resume debate on the nomination of Miguel Estrada. We have now spent 5 days, over 35 hours, debating this well-qualified and capable nominee. During this debate, every Senator should have had the opportunity to speak on the nomination of Miguel Estrada if they desired. We will continue consideration of this qualified nomination tomorrow morning. In addition, the omnibus conference report will be filed in the House tonight. The House is expected to act on that conference report tomorrow. Therefore, it is the leader's hope that the Senate will be able to complete action on that measure on Thursday or Friday. Rollcall votes are therefore possible during Thursday's session.

Mr. TALENT. That is correct. It would be in the morning.

Mr. TALENT

Mr. TALENT. Mr. President, will the Senator yield for a question?

Mr. TALENT. I wonder if my colleague read the statement by former Congressman Herman Badillo from New York who called the opposition to block Mr. Estrada ``grandstanding'' and ``this treatment of Mr. Estrada is demeaning and unfair not only to the nominee but the confirmation process and the integrity of the Senate.'' I wonder if my colleague believes that is a pretty remarkable statement coming from a former Democratic Member of Congress about the opposition being mounted to a fellow Hispanic.

Mr. TALENT. Mr. President, I think the Senator from Nevada spoke with his usual eloquence and none of us could tell he was up that early in the morning.

Mr. TALENT

Mr. TALENT. Mr. President, I ask unanimous consent that the Senate proceed to a period for morning business.

Mr. TALENT

Mr. TALENT. Mr. President, I rise today in recognition of February as American Heart Month. As a strong supporter of the American Heart Association, I want to make clear that prevention of heart disease should be a priority of health care funding. I have always believed that focusing resources on prevention will save lives as well as taxpayers dollars. Heart disease is the leading cause of death in Missouri and in the United States. Almost 18,000 people in Missouri died of heart disease in 1999. Many women believe that heart disease is a man's disease, so they fail to perceive it as a serious health threat. Every year since 1984, cardiovascular diseases have claimed the lives of more women than men. And, the gap between male and female deaths continues to grow wider. The national statistics are even more startling. Heart disease is the number one killer of women in the United States, claiming more than 250,000 women per year. Sadly, an American dies from cardiovascular disease approximately every 33 seconds. More than 61 million Americans--one in five males and females--suffer from heart disease, stroke or another cardiovascular disease. Stroke is the third leading cause of death in Missouri and in the United States. Almost 4,000 people in Missouri died of stroke in 1999. Heart disease, stroke and other cardiovascular diseases claim more lives each year than the next five leading causes of death combined. We know the causes of cardiovascular disease--one of them is high blood cholesterol. High cholesterol is a leading risk factor for heart disease and stroke. Approximately 42 million Americans have total blood cholesterol levels of 240 milligrams per deciliter and higher. These individuals are considered at high risk for developing coronary heart disease, which leads to heart attack. I know that something can be done to combat heart disease and save American lives, and that is why I joined Senator Dorgan in cosponsoring of The Medicare Cholesterol Screening Coverage Act of 2003. This legislation adds blood cholesterol screening as a covered benefit for Medicare beneficiaries, at a frequency and in a manner determined by the Secretary of Health and Human Services, (HHS). This is consistent with guidelines issued by the National Heart, Lung, and Blood Institute, which recommend that all Americans over the age of 20 be screened for high cholesterol at least once every five years. Currently, Medicare only covers cholesterol and other lipid testing for patients who already suffer from known disease such as heart disease, stroke, or other disorders associated with elevated cholesterol levels. This bill also provides flexibility to allow the Secretary of HHS to cover future cardiovascular screening tests that might become the standard of care in the future, so that Medicare can keep pace with changes in medicine. Congress has already acted to cover other screening tests such as bone mass measurement, glaucoma screenings, and screenings for colorectal, prostate, and breast cancer. Now is the time to also extend Medicare coverage for cholesterol screening. In recognizing February as American Heart Month, I urge my colleagues to act on The Medicare Cholesterol Screening Coverage Act of 2003, and I thank Senator Dorgan for his leadership on this issue. I also urge my colleagues to join me to prioritize legislation to help prevent heart disease.

Mr. TALENT

Mr. TALENT. Mr. President, I ask unanimous consent that the Senate proceed to legislative session.

Mr. TALENT

Mr. TALENT. Mr. President, I rise first of all in support of the Estrada nomination and to say a word or two about it. Mr. Estrada's qualifications are excellent. I reviewed them the other day and it struck me that the man is so smart it is almost scary: Harvard Law School, Phi Beta Kappa graduate, clerk of the court of appeals, clerked on the Supreme Court, argued numerous cases before the Supreme Court. I clerked on a court of appeals, and I mean no disrespect to the members of the Federal judiciary when I say I wish every Judge had Mr. Estrada's qualifications when he or she went on the bench. Mr. Estrada is competent, qualified, honest, and he deserves to be on the court of appeals. I regret the filibuster that is currently underway to prevent his confirmation. It is unfair to him. It is bad for the country. Worst of all, it introduces a note of discord into the Senate that makes me discouraged about our ability to do the other things we need to do for this country--to pull together behind a prescription drug plan, behind a jobs bill, behind a strong defense that will protect our men and women in uniform, protect our country, create jobs in Missouri and around the country. It will also inhibit our ability to accomplish what we need to do in health care for small business.

Mr. TALENT

Mr. TALENT. Will the Senator yield for just a moment? I certainly will not delay the Senator from Massachusetts. He has been very kind in allowing me to speak, but I wanted to thank the Senator for his kind remarks about me and many kindnesses to me, and especially coming out on the floor. I also want to say, because I see the senior Senator from Massachusetts and the Senator from Nevada and the Senator from Utah, how impressed I have been and how much I feel welcomed by the many senior Members of this body who took a moment to come over on their own and say hello to me. I am just grateful for that. It is a real mark of the congeniality of the Senate. I appreciate it. I thank my friend and colleague from Missouri for yielding.

Mr. TALENT

Mr. TALENT. Mr. President, I ask unanimous consent that when the Senate completes its business today, it stand in adjournment until 11 a.m., Thursday, February 13. I further ask unanimous consent that on Thursday, following the prayer and pledge, the morning hour be deemed expired, the Journal of proceedings be approved to date, the time for the two leaders be reserved for their use later in the day, and the Senate then return to executive session to resume the consideration of the nomination of Miguel Estrada to be a circuit judge for the DC Circuit.

Mr. TALENT

Mr. TALENT. Mr. President, in 1996 the Congress promised agriculture producers that they would no longer be penalized for heeding market signals and raising crops the market demanded. Two-hundred farmers in my home State of Missouri responded to strong domestic and foreign demand and planted acres of popcorn. Now, with the passage of the 2002 farm bill, these producers are greatly disadvantaged compared to farmers that stayed with traditional program crops. Under the provisions of the 2002 farm bill, producers who opted to grow popcorn since 1996 on acreage traditionally dedicated to program crops or soybeans are severely penalized if they attempt to update their program acreage history or yield history. Unless corrected, this will cause a substantial, potential loss to both farm income and land value. I believe that this problem should be corrected in the most expeditious manner, as the April 15 deadline for signup into the new farm programs is quickly approaching. Senator Lugar and I have introduced an amendment to allow producers to include popcorn in their program base acres. I am grateful to managers on both sides for addressing this issue in a managers amendment. The correction is simple. Popcorn is simply treated as a variety of the traditional corn for the purposes of determining bases and yields. I urge my colleges to support my amendment and allow the Department of Agriculture to consider popcorn equivalent to corn for the purpose of computing base acreage. There are 278,000 acres of land nationwide normally devoted to production of popcorn. We should not penalize those who farm this land because they believed the promises of the 1996 act. Popcorn growers in Missouri and across the Nation deserve equitable treatment when determining base acres.

Mr. TALENT

Mr. TALENT. Mr. President, I rise today in support of the agriculture disaster assistance funding included in the fiscal year 2003 omnibus appropriations bill. The farmers and ranchers in Missouri have suffered through bad weather and depressed prices, threatening their ability to stay in business. Agriculture is the cornerstone of the Missouri economy and I am pleased that the Senate was able to provide much needed assistance to these producers. Over the past 3 years, the agriculture community has faced droughts, flooding and insect infestations that have damaged yields and reduced profits. This package provides a responsible level of assistance to those who have suffered or continue to suffer substantial losses as a result of natural disasters. After months of political maneuvering, the Senate finally passed a new farm bill last year. This legislation provided increased economic resources, certainty, and stability across a wide range of agricultural and rural programs. However, the new farm bill is incapable of predicting and adequately dealing with natural disasters. The floods and droughts have deteriorated Missouri's agriculture production and exposed the shortcomings of these new farm programs. I have heard from producers around Missouri. Our farmers need this additional assistance to secure their operating loans for the 2003 crop year. Agriculture producers and lenders can include this assistance in cashflow projections. This $3.1 billion will give farmers great assistance as they make planting decisions for the upcoming crop year. Depressed prices, falling farm income, weather disasters and unstable global markets present a host of challenges to production agriculture. This assistance, made through direct payments and the additional funds for the livestock compensation program, enables farmers in Missouri and across the country, to continue to produce the safest, most abundant and affordable food in the world. I support this targeted disaster assistance measure that would bring great equity to Missouri's farmers and ranchers.