(Senate - July 21, 2004)

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[Pages S8516-S8535]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

                           EXECUTIVE SESSION



  Mr. McCONNELL. Mr. President, I ask unanimous consent that the Senate 
now proceed to executive session for the consideration of Calendar No. 
705, the nomination of Henry W. Saad, of Michigan, to be U.S. Circuit 
Judge for the Sixth Circuit.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The clerk will report the nomination.
  The legislative clerk read the nomination of Henry W. Saad, of 
Michigan, to be U.S. Circuit Judge for the Sixth Circuit.
  The PRESIDING OFFICER. The Senator from Connecticut is recognized.
  Mr. LIEBERMAN. Mr. President, I ask unanimous consent to proceed, 
along with Senator Collins, as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. Lieberman and Ms. Collins pertaining to the 
introduction of S. 2701 are printed in today's Record under 
``Statements on Introduced Bills and Joint Resolutions.'')
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. Might I inquire of the Chair what the pending business is.
  The PRESIDING OFFICER. The pending business is the nomination of 
Henry Saad, of Michigan, to the Sixth Circuit Court of Appeals.
  Mr. KYL. Mr. President, Senator Hatch is chairing a subcommittee 
hearing and asked that I open the debate with respect to the nomination 
and confirmation of Judge Henry Saad. So I think my comments are 
reflective of Chairman Hatch's views, but I will present them as my own 
as well.
  I will first speak a little bit about Judge Saad and his nomination 
to this court and why we have had a problem in getting this far with 
his nomination but why I hope our colleagues will be willing to vote to 
confirm him.
  As the Chair noted, he is a nominee to the U.S. Circuit Court for the 
Sixth Circuit. He was nominated, and I ask my colleagues to think of 
this date for a moment, on November 8, 2001. It is now 2004. He is a 
distinguished State court of appeals judge from the State of Michigan 
with nearly a decade of experience in that court. He has been there 
since 1994. In that capacity, he is actually elected and reelected, and 
he has been reelected twice to serve on the court of appeals with broad 
bipartisan support within the State of Michigan.
  The American Bar Association has rated Judge Saad qualified to sit on 
the U.S. Court of Appeals for the Sixth Circuit. Therefore, his 
nomination should have come before us long before now. He should be 
confirmed, obviously.
  I will mention a bit about the Sixth Circuit. There are 16 authorized 
seats on the circuit, but there are 4 vacancies. Obviously, one-fourth 
of the authorized seats on that court remain vacant today. President 
Bush has nominated four very well-qualified individuals from Michigan 
to fill these vacancies. The seat to which Judge Saad has been 
nominated has been deemed a judicial emergency and, of course, it is 
not hard to see why with that number of vacancies.
  Interestingly, President George H.W. Bush, President Bush No. 41, 
first nominated Judge Saad to the Federal bench in 1992, but the 
Democratic Senate failed to act on his nomination at that time, as well 
as one other from Michigan, prior to the end of President Bush's term. 
So this is the second time he has been nominated for this prestigious 
  A bit about his personal history. Judge Saad was born in Detroit. He 
is a lifelong resident of the State. He would be the first Arab-
American appointee to the Court of Appeals for the Sixth Circuit. 
According to the Detroit Free Press, Bush's nomination of Saad in the 
wake of the September 11 attacks--remember, it was only 2 months to the 
day following the September 11 attacks:

     conveys an important message to all the citizens and 
     residents of this country that we embrace and welcome 
     diversity and that we are extending the American dream to 
     anyone who is prepared to work hard.

  Judge Saad has had a distinguished career as a practicing attorney 
and law professor before serving on the State bench. From 1974 until 
1994 he practiced law, first as an associate and then a partner with 
the prestigious Detroit firm of Dickinson, Wright. He built a national 
practice and reputation there in the areas of employment law, school 
law, libel law, and first amendment law. He serves as an adjunct 
professor at both Wayne State University Law School and the University 
of Detroit Mercy School of Law. He received his

[[Page S8517]]

bachelor's degree in 1971 and his law degree, magna cum laude, in 1974, 
both from Wayne State University. He received a special Order of the 
Coif award in 2000, which is bestowed by a vote of the faculty of the 
school upon a distinguished graduate who has earned his degree before 
the law school was inducting members into the Order of the Coif.
  Judge Saad has significant appellate experience in both civil and 
criminal matters, authoring well over 75 published majority opinions. 
His nomination has broad bipartisan support, including endorsements 
from such disparate groups as the United Auto Workers and the Michigan 
Chamber of Commerce.
  Judge Saad is dedicated to improving the law and helping his State 
and local community through volunteer work. He was chairman of the 
board of the Oakland Community College Foundation, president of the 
Wayne State University Law School Alumni Association, and he is 
currently a member of the board of visitors to the Ave Maria Law 
  Judge Saad was a board member of the National Council of Christians 
and Jews and the American Heart Association, as well as trustee of WTVS 
Channel 56 Education Television Foundation.
  Judge Saad received the ``Salute to Justice John O'Brien Award'' for 
outstanding volunteer service to the people of Oakland County in 1997, 
and he received the Arab-American and Chaldean Council Civic and 
Humanitarian Award for outstanding dedication to serving the community 
with compassion and understanding in 1995.
  Let me read a few statements from people who have endorsed the 
nomination and confirmation of Judge Henry Saad. The Secretary of 
Energy, former Senator from the State of Michigan, said:

       I have known Henry for twenty years on a personal and 
     professional level. He is a person of unimpeachable integrity 
     and will serve our country and our justice system remarkably 

  John Engler, the former Governor of Michigan, said:

       The President selected individuals [including Henry Saad] 
     who are experienced judges and whose reputations for 
     intellect, knowledge of the law, diligence and temperament 
     are well established. Judge Saad has established a 
     distinguished reputation on Michigan's appellate court 
     which he will take to the federal appeals court.

  The President of the United Auto Workers, Stephen Yokich, said:

       I have known Judge Saad for twenty-five years. He is a man 
     of the highest integrity and a judge who is fair, balanced 
     and hard working. I strongly support President Bush's 
     nomination of Judge Saad to the federal appellate bench.

  Congressman Joseph Knollenberg, who is a Representative from the 
State of Michigan, said:

       I have known Judge Saad for over twenty-five years. He was 
     an outstanding lawyer and is a highly regarded appellate 
     jurist, known for his scholarly opinions, balance and 
     fairness. I am confident he will be a great addition to the 
     Federal appellate bench.

  Justice Stephen Markman from the Michigan Supreme Court said:

       In his seven years on the Michigan Court of Appeals, Judge 
     Saad has been one of its most thoughtful and fair-minded 
     jurists. His opinions and his judicial integrity have earned 
     him the respect of a remarkably broad range of his 

  Finally, Judge Hilda Gage of the Michigan Court of Appeals said:

       I have served with Judge Saad on the Michigan Court of 
     Appeals for six years. I admire his judicial independence and 
     his scholarly analysis of the law. I applaud the President's 
     nomination of Judge Saad to the Sixth Circuit Court of 

  Those are some of the people who have worked with him, who have known 
him a long time, who represent a diverse point of view within the State 
of Michigan, and yet all of whom endorse the President's nomination of 
Judge Saad to the Sixth Circuit.
  Let me speak for a moment about the status of his circuit because, as 
I noted at the beginning, there are four vacancies. One-fourth of the 
active seats on this court, are vacant. The President has nominated 
four very well-qualified individuals to fill these vacancies. All four 
of these vacancies have been deemed judicial emergencies by the 
Administrative Office of the U.S. Courts.
  I might, for those who are not aware, describe what this means. The 
Administrative Office of the U.S. Courts characterizes, in some rare 
circumstances, vacancies on the court as judicial emergencies by virtue 
of the caseload of the court, the nature of the cases before the court, 
the ability of the court to turn out decisions and opinions, and the 
number of judges available to serve on the court. They balance all of 
those considerations. When the court does not have enough people to do 
the job it is required to do, when litigants are taking too long to get 
their matters heard before the court, and in effect when justice is not 
being done because it is being delayed, then the Administrative Office 
of the U.S. Courts declares judicial emergencies.
  All four of these vacancies in the Sixth Circuit have been so 
designated. The confirmation of two judges in late April and early May 
of this year filled two of then six vacancies, but the circuit remains 
  By the way, let me quantify what I said a moment ago. When I spoke of 
judicial emergency, in the court of appeals, that occurs specifically 
when adjusted filings per panel are in excess of 700, or any vacancy is 
in existence more than 18 months where adjudicated filings are between 
500 and 700. All four of the Michigan vacancies on the Sixth Circuit 
have been in existence for more than 18 months and the adjusted filings 
total 588. That is why it is so important that we act now to fill this 
  Only a substantial commitment on the part of the senior judges of the 
Sixth Circuit, and the district judges from within the circuit filling 
in, as well as visiting appellate judges from other circuits, has kept 
the caseload of this important circuit manageable. It is the third 
busiest court of appeals in the country. Chief Judge Boyce Martin has 
asked Congress to authorize a 17th judge for the court.
  So if we filled all four of these vacancies today, not only would we 
have at least filled those judicial emergencies, but the chief judge of 
the circuit has said we need additional judges in addition to these.
  Among the 12 U.S. Courts of Appeals, the Sixth is the 11th in the 
timeliness in the disposition of cases. Only the Ninth Circuit takes 
longer to issue its opinions. I am familiar with that, having practiced 
before the Ninth Circuit. When it takes so long for litigants who have 
disputes before the court to get action on their cases, justice is 
denied. This circuit, being the next to the bottom in terms of the 
speed with which its decisions are made, makes it a clear candidate for 
the Senate to act. It is unconscionable that we have not been able to 
confirm Judge Saad as well as the other three nominees to this court.
  The district court judges within the Sixth Circuit have complained 
that what has turned out to be regular duty as substitute judges on the 
court of appeals has slowed down their own dockets considerably. In 
other words, they have not been able to do their own jobs because they 
have had to fill in for the circuit court judges. According to Judge 
Robert Bell, who is a district judge from the Western District of 

       We're having to backfill with judges from other circuits, 
     who are basically substitutes. You don't get the same sense 
     of purpose and continuity you get with full-fledged court of 
     appeals judges. . . . Putting together a federal appeals 
     court case often takes a Herculean effort in a short time for 
     visiting district judges. ``We don't have the time or the 
     resources that the circuit court has,'' Bell said. You can't 
     help to conclude that if we had 16 full-time judges with a 
     full complement of staff that each case might get more 
     consideration, not to say results would be different.

  This quote, by the way, was the Grand Rapids Press, February 21, 
  U.S. attorneys in Michigan likewise have complained that the vacancy 
rate in the Sixth Circuit has slowed justice and complicated the 
ability to prosecute wrongdoers. It has enabled defendants to commit 
more crime while awaiting trial. It has led to less consistencies in 
the court's jurisprudence and effectively deprived the use of en banc 
review in some cases. En banc review is the situation where a panel of 
three judges has made a decision and the litigants have asked the full 
court to hear--in effect to rehear or have a mini-appeal--a case from 
the decision of the panel of three. If you do not have the full 
complement of judges on the court, you can't have the same kind of en 
banc review.
  Let me quote a letter from 31 assistant U.S. attorneys in the Eastern 
District of Michigan sent to our colleague,

[[Page S8518]]

Senator Carl Levin, on January 16, 2002:

       In years past, it was the normal practice of the Sixth 
     Circuit that a case would be heard by the Court approximately 
     three months after all briefs were filed, and in most cases 
     an opinion would issue in about three additional months. At 
     present, due to the large number of vacancies on the Court . 
     . . it has been taking on average between twelve and eighteen 
     months longer for most appeals to be completed than was the 
     case for most of the 1990's.

  These are the prosecuting attorneys. These are the people who I noted 
have complained that the vacancy rate has complicated their ability to 
prosecute wrongdoers. Our failure to act in the Senate has real-life 
consequences on the people of Michigan. When justice cannot be 
dispensed with because there are not enough judges and wrongdoers are 
awaiting trial and they are able to go out and commit additional 
crimes, we have a responsibility to solve that problem. That is why it 
is so important for us to vote and to vote up or down on the 
confirmation of Judge Saad.
  I serve on the Judiciary Committee. I heard some questions raised 
about whether he would be a good addition to the court. You heard just 
a summary of the many people who spoke on his behalf with a wide 
diversity of opinion. He has a ``qualified'' rating from the Bar 
  If my colleagues want to vote no on his nomination, they are free to 
do so. On rare occasions, I have voted no against judicial nominees. I 
voted no on very few occasions when President Clinton was making the 
nominations, but I felt that I always had the right to express my view 
one way or the other. That is all Judge Saad is asking for. With the 
nomination pending now for almost 4 years, it is time that he have a 
vote up or down.
  Let me read to you a letter from 31 assistant U.S. attorneys in the 
Eastern District to Senator Levin:

       [D]elays in criminal cases hurt the government; the 
     government has the burden of proof, and the longer a case 
     goes on the more chance there is that witnesses will 
     disappear, forget, or die, documents will be lost, and 
     investigators will retire or be transferred.

  I go on from a different portion of this letter:

       In some cases, convicted criminal defendants are granted 
     bond pending appeal. The elongated appellate process 
     therefore allows defendants to remain on the street for a 
     longer period of time, possibly committing new offenses. In 
     addition, the longer delay makes retrials more difficult if 
     the appeal results in the reversal of a conviction.

  Further quoting from this letter:

       The Sixth Circuit has resorted to having more district 
     judges sit by designation as panel members. This practice has 
     contributed to a slowdown of the hearing of cases in district 
     courts, because the district judges are taken out of those 
     courtrooms. The widespread use of district judges also 
     provides for less consistency in the appellate process than 
     would obtain if full-time Circuit judges heard most of the 
       In some cases, the small number of judges on the Court has 
     served to effectively deprive the United States of en banc 
     review. . . . Achieving a unanimous vote of all of those 
     judges of the Court who were not part of the original panel 
     is, as a matter of practice, impossible, and not worth 
     seeking. However, if the Court was at full strength, an en 
     banc review could have been granted with the votes of about 
     two-thirds of the active judges who were not part of the 
     original panel.

  Why haven't we been able to vote on Judge Saad? The two Senators from 
the State, notwithstanding the fact that there are four vacancies in 
their own State, that the prosecutors from the State have written as I 
have just indicated, that people of wide disparate views in their State 
support his nomination, the two Senators from the State have urged 
their colleagues not to allow the vote to go forward. The reason is 
because two nominees to fill vacancies in Michigan were left without 
hearings at the end of the Clinton administration in 2001. It is not 
uncommon at the end of an administration for there to be nominations 
pending. I predict that because of opposition from the minority party, 
there will be a lot of nominations President Bush would like to have 
confirmed but which will not be confirmed because the other party will 
not allow it to happen. Sometimes nominations are made too late in the 
year for the vetting to be done, for the Bar Association to report, for 
the hearings to be held, for the executive work of the Judiciary 
Committee to report the judges to the Senate floor, and for the full 
Senate to vote. That is not an uncommon occurrence.
  I note, for example, that Senators who are upset that two judges 
weren't considered at the end of the Clinton administration should also 
note that two nominees, including John Smietanka, the very well 
qualified U.S. attorney from the Western District of Michigan, were 
also left without hearings at the end of President Bush's term in 1993. 
So President Clinton got to appoint the same number of judges to the 
Sixth Circuit as the number of vacancies that came open during his 
Presidency. As with his predecessor, there were a couple of nominations 
still pending at the time his term ended.
  But as these examples illustrate, both parties have had nominations 
left pending at end of their President's terms. The effort of the 
Senators from Michigan to block the consideration of Judge Saad as well 
as the other three nominations of President Bush at the outset of his 
term in 2001 is unheard of. It might be one thing if these nominations 
had just occurred and we didn't have time to consider them, but Judge 
Saad, as I said, was nominated on November 11, 2001, 2 months after the 
historic event of September 11. Five of the Sixth Circuit active 
judges--nearly half--were appointed by President Clinton--one 
President. I don't think it is possible to argue here that there is 
some kind of political agenda by Republicans or by President Bush to 
deny President Clinton nominations and confirmations of his 

  I might note that an editorial opinion in Michigan confirms this 
point. It is overwhelmingly opposed to the tactics of the minority to 
prevent confirmation of the nominees President Bush has made to fill 
these vacancies.
  Let me quote from the Grand Rapids Press of February 24, 2002. This 
is only 3 months after the nomination of Judge Saad:

       The Constitution does not give these Senators from Michigan 
     [Senators Levin and Stabenow] co-presidential authority and 
     certainly does not support the use of the Court of Appeals to 
     nurse a political grudge. . . . [Senators Levin and Stabenow] 
     have proposed that the President let a bipartisan commission 
     make Sixth Circuit nominations or that Mr. Bush re-nominate 
     the two lapsed Clinton nominations. Mr. Bush has shown no 
     interest in either retreat from his constitutional 
     prerogatives. Nor should he. Movement in this matter should 
     come from Senators Levin and Stabenow--and, clearly, it 
     should be backward.

  From the Detroit News, June 30, 2002:

       It was wrong for the Senate to fail to act on Clinton's 
     Michigan nominees. But another wrong won't make things right 
     for Michigan. Enough is enough. . . . Senators, it is long 
     past time to fill Michigan's voids in the hall of justice.

  I will conclude with one comment. Colleagues on the other side of the 
aisle will argue that we actually have confirmed a lot of President 
Bush's nominees. The truth is that we have confirmed about the same 
number of district court judges as is usual for the Senate during the 
first term of the President. In the first 3\1/2\ years of President 
Bush's term, we have confirmed, so far, 198 judges, and that is pretty 
close to the other President's by this overall statistic. President 
Bush would be on about the same pace as President Clinton, who 
appointed a total of 371 judges in 8 years--just 4 fewer than the 375 
appointed by President Reagan. This would be about par.
  The problem is, in the circuit court judges, Presidents ordinarily 
get most of their nominees confirmed, but President Bush is only 
getting about half of his confirmed.
  Here are the statistics. President Clinton saw 71 percent of his 
circuit court nominees receive a full vote in the Senate; the first 
President Bush, 79 percent. President Reagan, 88 percent of his circuit 
nominees were confirmed; President Carter, 92 percent. But in the 107th 
Congress--our Congress--President Bush has only gotten 53 percent of 
his circuit court nominees voted on by the full Senate, 17 out of 32.
  That is where the problem is and there is no secret why. As has been 
described many times by my friends on the other side of the aisle, the 
circuit court is just below the Supreme Court. It is viewed as more 
powerful and more important than the district courts. There are many 
more district court judges. They are the court of first resort. Their 
cases are appealed to the circuit courts.
  Most of the time, circuit court decisions are not appealed or the 

[[Page S8519]]

are not accepted by the Supreme Court. It can only hear maybe 300 cases 
or so a year, so, as a practical matter, the circuit courts become the 
court of last resort. That is why Democrats have refused to even vote 
on President Bush's nominees for circuit courts because they believe 
President Bush's nominees would not be as capable, have the right 
political philosophy, or serve the interests of justice as well as a 
President of their party.
  As I have noted, whether Democrat or Republican, the full Senate 
under Republican control, as well as under Democratic control, has 
allowed votes on the vast majority of the circuit court nominees of 
previous Presidents. It is only President George Bush who has only 
received a vote on half of his circuit court nominees. That is what is 
going on. It is wrong. We need to vote. We need to vote on a nominee 
who has been pending now since November 11, 2001, Judge Henry Saad. I 
urge my colleagues when that opportunity comes within the next several 
hours, we will have that opportunity, they will agree to permit an up-
or-down vote. That is all we are asking for.
  If they have objections, and I see a couple of my colleagues are 
here, perhaps they would like to discuss their objections to Henry 
Saad. But let the Senate vote on this nominee as we do with most other 
issues. We bring it to the vote. Our Members want to vote. But at least 
this man, who has been waiting now for 3 years, would have a chance to 
have his nomination either confirmed or rejected.
  I urge my colleagues to provide him that opportunity.
  The PRESIDING OFFICER. The Senator from New Jersey is recognized.
  Mr. LAUTENBERG. I ask unanimous consent that I be permitted to speak 
as in morning business and after I finish, in approximately 15 minutes, 
the Senator from New York be given an opportunity to speak.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                       Bin Laden Flight Manifest

  Mr. LAUTENBERG. Mr. President, today I rise to discuss some 
disturbing information that was released to the public today. It 
concerns the aftermath of the terrorist attacks on the United States on 
September 11, 2001.
  A little more than a week after September 11, precisely on September 
19, 2001, a luxury airliner 727 took off from Boston Logan Airport. It 
was wheeled up, at 11 o'clock at night, under the cover of darkness. 
That airplane left the United States for Gander, Canada, then on to 
Paris, Geneva, and the final stop was Jeddah, Saudi Arabia.
  The question was, Who was on this charter flight carrying people who 
will never again set foot in the United States? That charter flight, 1 
week after September 11, carried 12 members of the bin Laden family out 
of our country. When they left, they took a million unanswered 
questions with them.
  Now, on this chart is the flight manifest of that fateful flight. I 
will read the names of those with the last name of bin Laden: ``Najia 
Binladen, Khalil Binladen, Sultan Binladen, Khalil Sultan Binladen, 
Shafig Binladen, Omar Awad Binladen, Badr Ahmed Binladen, Nawaf Bark 
Binladen, Mohammed Saleh Binladen, Salman Salem Binladen, Tamara Khalil 
Binladen, Sana's Mohammed Binladen, and Faisal Khalid Binladen.''
  I ask my colleagues, why in the world would we let 12 members of 
Osama bin Laden's family leave the country at that moment?
  One of the first rules of a criminal investigation when you have the 
suspect on the run is to interrogate the family members. Osama bin 
Laden had just murdered over 3,000 Americans, but the administration 
let his family flee. The question is, Why?
  There are reports that some of the bin Ladens were interviewed on the 
airplane by the FBI. Interviewed on the airplane? Everybody knows when 
the FBI is conducting a serious interview they do not do it within 
hearing of everyone else. These people were about to take off. Why 
would they disclose anything to U.S. law enforcement? They were getting 
out of here.
  I have talked to law enforcement officials who said, at the very 
least, the bin Laden family should have been detained on a material 
witness warrant and put under oath and asked the question, Do you know 
where Osama bin Laden is? Do you know where his safe houses are? Where 
does he get his money? Who are his associates?
  The Saudi PR machine has been spinning that Osama bin Laden is 
ostracized from his family; no one has any contact with him anymore. 
Most experts believe that is not the truth. It may be true for some 
family members but certainly not all.
  It is, at the very least, unclear what bin Laden's position on Osama 
bin Laden really is. Osama bin Laden's brother, Yeslam bin Laden, was 
interviewed on television recently. He was asked the question, Would 
you turn Osama bin Laden in, if you knew where he was? He essentially 
said no.

  Before it left this country, this charter flight stopped in several 
U.S. cities. It started by picking up one bin Laden, Najia bin Laden, 
in Los Angeles. It then flew to Orlando to pick up more members of the 
bin Laden family. Once in Orlando, the crew of this charter flight 
found out who they were carrying as passengers and threatened to walk 
out. They did not want to fly that flight but the charter company 
insisted they stay on the job. The airplane was flown from Orlando to 
Dulles, near Washington, to pick up more bin Ladens. Then the flight 
landed at Logan Airport in Boston to pick up additional family members 
to leave the country.
  At Logan Airport, the officials there were not eager to let this 
plane full of bin Ladens take off so easily. The airport officials 
demanded clearances from the Bush administration before they let this 
airplane leave. But then, to their astonishment, the clearances quickly 
came through. Let them leave, was the order from the Bush 
administration. And we ask, Why?
  Look at the names of the bin Laden family members who are allowed to 
leave the country. It is astounding, 12 of them, all of them with bin 
Laden last names. That is a pretty good indication that they ought to 
be questioned, ought to be interpreted, that they ought to tell what 
they know about Osama bin Laden, the murderer of our Americans.
  Millions of Americans were still distraught on September 19. 
Thousands of foreigners were detained across our Nation and across the 
world, but the family of the perpetrator was let go. It makes no sense.
  Some of these individuals' names raise specific concern. Take Omar 
bin Laden. He was under suspicion for involvement in a suspected 
terrorist organization. This was known on September 19, 2001, but the 
administration allowed him to flee. Once again, we must ask the 
question, why?

  The President of the United States should explain to the American 
people why his administration let this plane leave. The American people 
are going to be shocked by this manifest, and they deserve an 
  These are 12 names that may have been inconvenienced in September 
2001, if we detained them and subjected them to questioning under oath. 
They might not have liked it. That is 12 people potentially 
inconvenienced compared to the almost 3,000 names of those murdered on 
  The American people deserve an answer. This information is reliable. 
Manifests are always filed with flights, especially those going out of 
the country. The destination: Saudi Arabia, Saudi Arabia, Saudi 
Arabia--all the way down the line. The passport numbers are blocked out 
on this chart, but their identity is quite clear.
  This is a question that must be answered.
  With that, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SCHUMER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Hagel). Without objection, it is so 
  Mr. SCHUMER. Mr. President, I know my colleagues are waiting, so I 
will try to be brief. I have come to the floor to talk about a 
resolution Senator Cornyn and I are submitting on human trafficking. 
Before I get into that, I want to mention a couple of points in 
reference to my good friend from Arizona. One is a numerical question. 
He talked about courts of appeals

[[Page S8520]]

judges who have been approved under previous administrations and then 
mentioned the 107th Congress of this administration. It is sort of a 
bit of comparing not apples and oranges but apples and half apples.
  I believe if you look at the number for the whole of President Bush's 
term, it goes up considerably. It might not be quite as high as some of 
the others, but it is much higher than the 53 percent Senator Kyl 
mentioned. Senator Kyl is a good friend of mine. I mentioned this to 
him while he was here.
  But the second point I would make--I know my good colleague from 
Michigan, Carl Levin, will be bringing this up at some length--to me, 
the issue is not a tit-for-tat issue. They did a lot of wrongs 
previously when President Clinton was President and they did not let 
judges come through, and that created the vacancies in Michigan. But I 
have some sympathy for the Detroit News article Senator Kyl quoted that 
said there should not be tit for tat here.
  Two wrongs don't make a right. It is sort of anomalous for those 
creating the wrong to say two wrongs don't make a right. But there is a 
far more important point, and that is this: The reason we have no 
approval of judges in Michigan is the President has ignored the part of 
the Constitution that talks about advise and consent. For the vacancies 
in Michigan, if the President sat down with the Michigan Senators, Mr. 
Levin and Ms. Stabenow--both reasonable people, people who have engaged 
in many bipartisan relationships themselves--and said: ``How do we work 
this out?'' it would have been worked out in the first 6 months of the 
President's term.

  The idea that, A, previous Senates have created vacancies, and then 
the President says to the Senators of that State or to the Senators of 
this body: ``It's my way or no way. I'm picking the judges. You have no 
say,'' that is what has created the deadlock.
  The Constitution calls for advice as well as consent. In States where 
there has been advice, it has worked. In my State of New York we have 
no vacancies. Why? Because the administration has consulted with me. My 
colleague Senator Clinton and I have nominated some judges to vacancies 
in New York. They have nominated the lion's share, but none of them 
would meet with this body's disapproval.
  I am sure, if the President would simply sit down with Senator Levin 
and Senator Stabenow, and say: ``How do we work this out?'' it would be 
worked out, pardon the expression, in a New York minute. But they do 
not. They have an attitude: Here is what we want. You approve them. And 
if you don't approve every single one, then you are obstructionists.
  As has been mentioned over and over again, of the 200 judges this 
body has dealt with, 6 have been disapproved and 194 have been 
approved. That is a darn good track record. I am a Yankee fan. The 
Yankees' percentage is up there around .700, .650 in terms of wins and 
losses. We are all proud of that. The President is doing a lot better 
than the Yankees.
  The idea that ``It's my way or no way'' is not going to work. 
Furthermore, I would argue to my colleagues, it is not what the 
Founding Fathers wanted. If they wanted the President to appoint judges 
unilaterally, they would have said so in the Constitution. But they 
wanted the Senate to have a say.
  I remind my colleagues, one of the first judges nominated by 
President Washington, John Rutledge of South Carolina, was rejected by 
the Senate because, of all things, of his views on the Jay treaty. And 
in that Senate were a good number of Founding Fathers, people who had 
actually written the Constitution, so clearly the Founding Fathers did 
not intend the Senate to be a rubberstamp.
  Certainly they did not intend for the Senate to hold up a majority of 
judges, but when the President nominates people way out of the 
mainstream, when the President refuses to sit down and negotiate, these 
are the results. And I would guess--again, I defer to Senator Levin, 
who is on the floor--my view is, if the President or his counsel were 
to pick up the phone and say to Senator Levin: ``How do we work this 
out?'' it is still not too late, even as we enter the twilight of this 
Congress, to get it done.
  That is all I will say on that matter. I will leave the rest to my 
colleague from Michigan.
  (The remarks of Mr. Schumer pertaining to the submission of S. Res. 
413 are printed in today's Record under ``Submitted Resolutions.'')
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, I thank the Senator from New York for his 
comments relative to judicial appointments. He is exactly right in 
terms of the number of judges that this Senate has confirmed with the 
support of this side of the aisle. He is exactly right when it comes to 
the willingness of Senator Stabenow and myself to compromise the 
deadlock that exists with this administration over the Michigan judges. 
We have been willing to do that from the beginning of this 
administration. We continue to be willing to attempt some kind of a 
compromise relative to these vacancies.
  What we are unwilling to do is to allow a tactic, which was used 
relative to these two women who were nominated by President Clinton 
which denied them hearings for over 4 years and over 1\1/2\ years 
respectively, to succeed, as the good Senator from New York said, to 
either create these vacancies or to leave these vacancies opened for 
the next President to fill. That is not the way things should work. It 
is not the way the Constitution contemplated it. We are going to do our 
best to continue to press for a bipartisan solution in a number of ways 
but in the meantime to not simply say, OK, go ahead, fill vacancies 
which should not exist but only exist because of the denial of hearings 
for two well-qualified women who were appointed by President Clinton.
  I thank the Senator from New York for his comments, for his 
perception, for his willingness and determination--more than 
willingness--to look at the full meaning of the Constitution so that it 
is not just the President who makes appointments in a situation such as 
this and assumes that the vacancies, which were created by denial of 
hearings for nominees of the previous administration, will be 
rubberstamped by this body.
  Mr. SCHUMER. Mr. President, will my colleague yield?
  Mr. LEVIN. I am happy to yield.
  Mr. SCHUMER. First, I compliment my friend from Michigan for his 
steadfastness on this issue. Everyone knows the desire of the Senator 
and his colleague, Senator Stabenow from Michigan, to compromise. Over 
and over and over again, we on this side of the aisle have said: We 
don't expect the President to appoint judges that we agree with on most 
things. In fact, for 200 judges, the vast majority of us have voted for 
judges with whom we don't agree on many issues.
  The point is, to blame these vacancies, as my friend from Arizona 
tried to do, on the Senators, when the President refuses to just pick 
up the telephone and call them and say, ``How do we work this out,'' is 
very unfair.
  I ask my colleague, once again, is he willing--and is Senator 
Stabenow, to his knowledge, willing--to sit down with the White House 
and come up with a compromise to fill these vacancies and that these 
vacancies don't have to remain vacant except for almost the 
intransigence of the White House to say, ``If you don't do it our way, 
we are not doing it any way''? Am I wrong in that assumption?
  Mr. LEVIN. The Senator from New York is decidedly right. We have 
expressed that willingness. There have been a number of suggestions 
which have been made for compromise. One of the suggestions which we 
have made was that there be a bipartisan commission appointed in 
Michigan to make recommendations to the White House to fill these 
vacancies. The recommendations do not have to include these two women. 
Bipartisan commissions have been appointed in other States without this 
kind of a deadlock existing but simply to promote bipartisanship. That 
suggestion has been rejected by the White House.
  There was another suggestion that was made by Senator Leahy when he 
was chairman of the Judiciary Committee for that period of time the 
Democrats were in the majority. That suggestion was actually supported 
by the then-Republican Governor of Michigan. There was a recommendation 
by then-Chairman Leahy as to how to resolve this issue. That was also

[[Page S8521]]

rejected by the White House. We continue to be open to suggestions to 
fill these vacancies, but we are deeply of the belief that the tactic 
that was used to deny hearings to qualified women--one of whom is a 
Michigan court of appeals judge and the other one of whom is a 
celebrated appellate lawyer in front of the Sixth Circuit--should not 
succeed. Maybe it succeeds in some places where there are not Senators 
in those States who will object because the new President of their 
party picks somebody they like and may have recommended.
  But in a situation like this, when you have the advise-and-consent 
clause in the Constitution, and where there has been this kind of a 
tactic used, which the White House acknowledges was unfair--Judge 
Gonzalez has acknowledged that that tactic of denying hearings was 
unfair--simply to then fill the vacancies that were unfairly created is 
not something we can simply roll over and accept.
  Mr. SCHUMER. Will my colleague yield further?
  Mr. LEVIN. Yes.
  Mr. SCHUMER. I thank the Senator for his steadfastness. He is hardly 
a person with a reputation of being unwilling to compromise and work 
things out. To my knowledge, he loves to do that kind of thing.
  I will make one more point before yielding the floor. This involves 
my previous discussion with the Senator from Arizona, to corroborate 
and clarify the Record. There have been 35 court of appeals judges 
confirmed under President Bush. There were 65 in the 2 Clinton terms, 
twice as long. At least thus far, we are doing a better job confirming 
President Bush's court of appeals nominees than the previous Senates 
did in confirming President Clinton's. The numbers are fairly 
comparable, with President Bush doing a little bit better.
  With that, I yield back to my colleague and tell him I fully support 
him in his quest for some degree of fairness and comity.
  Mr. LEVIN. I thank my friend from New York.
  Mr. President, I discussed with the Senator from New York the 
situation and the background relative to these Michigan vacancies. Two 
women, Helene White, a court of appeals judge, and Kathleen McCree 
Lewis, well known in Michigan as a very effective advocate--
particularly appellate advocacy--were nominated by President Clinton to 
be on the Sixth Circuit Court of Appeals.
  Judge White was denied a hearing for over 4 years, which is the 
longest time anyone has ever awaited a hearing in the Senate. She was 
never given a hearing by the Judiciary Committee. Kathleen McCree Lewis 
waited over a year and a half without a hearing in the Judiciary 
  For a time, there was a refusal to return blue slips on these two 
nominees by my then-colleague Spence Abraham. But even after Senator 
Abraham returned the blue slips in the spring of 2000, the women were 
not given hearings. They never got a vote in the Judiciary Committee or 
on the floor.
  That distortion of the judicial nominating process was unfair to the 
two nominees. It deprived the previous administration of consideration 
by the Senate of those two nominees. Senator Stabenow and I have 
objected to proceeding to the current nominees until a just resolution 
is achieved.
  Moving forward without resolving the impasse in a bipartisan manner 
could indeed deepen partisan differences and make future efforts to 
resolve this matter more difficult. I have said repeatedly that the 
number of Michigan vacancies on the Sixth Circuit provides an unusual 
opportunity for bipartisan compromise.
  Judge Helene White was nominated to a vacancy on the Sixth Circuit on 
January 7, 1997. I returned my blue slip on Judge White's nomination. 
The junior Senator from Michigan, Mr. Abraham, did not. More than 10 
months later, on October 22, 1997, Senator Leahy, as ranking member of 
the Judiciary Committee, delivered what would be the first of at least 
16 statements on the Senate floor, made over a 4-year period regarding 
Sixth Circuit nominations in Michigan. He called for the committee to 
act on Judge White's nomination. His appeal, like others that were to 
follow, was unsuccessful.
  For instance, in October of 1998, more than a year and a half after 
Judge White was nominated, Senator Leahy returned to the floor, where 
he warned the following:

       In each step of the process, judicial nominees are being 
     delayed and stalled.

  His plea was ignored. The 105th Congress ended without a hearing for 
Judge White.
  On January 26, 1999, the beginning of the next Congress, President 
Clinton again submitted Judge White's nomination. That day, I sent one 
of many notes to both Senator Abraham and to the chairman of the 
Judiciary Committee. In that letter, I said the 105th Congress had 
ended without a Judiciary Committee hearing for Judge White and 
suggested that fundamental fairness dictated there be an early hearing 
in the 106th Congress. Again, no hearing.
  On March 1, 1999, Judge Cornelia Kennedy took senior status, opening 
a second Michigan vacancy on the Sixth Circuit. The next day, Senator 
Leahy returned to the floor, repeated his previous statement that 
nominations were being stalled, and raised Judge White's nomination as 
an example.
  On September 16, 1999, President Clinton decided to nominate Kathleen 
McCree Lewis to that second vacancy. Soon thereafter, within 2 weeks, I 
spoke with Senator Abraham about both nominations, the Lewis and the 
White nominations. It had been more than 2\1/2\ years since Judge White 
was first nominated. Twice in the next month and a half, Senator Leahy 
urged the committee to act, calling the treatment of judicial nominees 

  On November 18, 1999, I again wrote to Senator Abraham and Chairman 
Hatch, urging hearings in January 2000 for the two nominees. I then 
noted that Judge White had been waiting for nearly 3 years for a 
hearing, and I stated that confirmation of the two women was essential 
for fundamental fairness. My appeals were for naught, and 1999 ended 
without hearings in the Judiciary Committee.
  In February of 2000, Senator Leahy spoke again on the floor about 
vacancies on the Sixth Circuit. A few weeks later, in February of 2000, 
I made a personal plea to Senator Abraham and Chairman Hatch to hold 
hearings on the Michigan nominees. Again, I was unsuccessful and no 
hearing was scheduled.
  On March 20, the chief judge of the Sixth Circuit sent a letter to 
Chairman Hatch expressing concerns about an alleged statement from a 
member of the Judiciary Committee that ``due to partisan 
considerations,'' there would be no more hearings or votes on vacancies 
for the Sixth Circuit Court of Appeals during the Clinton 
administration. The judge's concern would turn out to be well-founded.
  On April 13, 2000, Senator Abraham returned his blue slips for both 
Judge White and Ms. Lewis without indicating his approval or 
disapproval. The day Senator Abraham returned his blue slips, I spoke 
to Chairman Hatch and sent him a letter reminding him that blue slips 
had now been returned, that objections had not been raised, expressed 
my concern about the unconscionable length of time the nominations had 
been pending, and I urged that they be placed on the agenda of the next 
Judiciary Committee confirmation hearing.
  Those efforts were unsuccessful. Two Michigan nominees were not 
placed on the agenda. I tried again early May 2000. I sent another note 
to Chairman Hatch, but those nominations were not placed on the 
committee's hearing agenda then or ever.
  Over the next several months, Senator Leahy went to the floor 10 more 
times to urge action on the Michigan nominees. More than once, I also 
raised the issue on the Senate floor.
  In the fall of 2000, in a final attempt to move the nominations of 
two Michigan nominees, I met with the majority leader, Senator Lott, 
and Senator Daschle to discuss the situation. I sent a letter to the 
majority leader urging him, stating, ``The nominees from Michigan are 
women of integrity and fairness. They have been stalled in this Senate 
for an unconscionable amount of time without any stated reason.''
  Neither the meeting with the majority leader nor the letter resulted 
in the Judiciary Committee holding hearings on these nominations, and 
the 106th

[[Page S8522]]

Congress ended without hearings for either woman.
  Judge White's nomination was pending for more than 4 years, the 
longest period of time of any circuit court nominee waiting for a 
hearing in the history of the Senate. And Ms. Lewis's nomination was 
pending for over a year and a half.
  There has been a great debate over the issue of blue slips. I am not 
sure this is the place for a lengthy debate on that issue, but I will 
say there has not been a consistent policy, apparently, relative to 
blue slips, although it would seem as though the inconsistency has 
worked one way.
  In 1997, when asked by a reporter about a Texas nominee opposed by 
the Republican Senators from Texas, Chairman Hatch said the policy is 
that if a Senator returns a negative blue slip, that person is going to 
be dead. In October 7, 1999, Chairman Hatch said, with respect to the 
nomination of Judge Ronnie White:

       I might add, had both home-State Senators been opposed to 
     Judge (Ronnie) White in committee, John White would never 
     have come to the floor under our rules. I have to say, that 
     would be true whether they are Democrat Senators or 
     Republican Senators. That has just been the way the Judiciary 
     Committee has operated. . . .

  Apparently, it is not operating that way anymore because both 
Michigan Senators have objected to this nominee based on the reasons 
which I have set forth: that we cannot accept a tactic which keeps 
vacancies open, refusing hearings to the nominees of one President to 
keep vacancies open so they can then be filled by another President. 
That tactic should be stopped. It is not going to be stopped if these 
nominations are just simply approved without a compromise being worked 
out which would preserve a bipartisan spirit and the constitutional 
spirit about the appointment of Federal judges.
  It is my understanding that not a single judicial nominee for 
district or circuit courts--not one--got a Judiciary Committee hearing 
during the Clinton administration if there was opposition from one home 
State Senator, let alone two. Now both home State Senators oppose 
proceeding with these judicial nominees absent a bipartisan approach.
  Enough about blue slips. Senator Abraham then did return blue slips 
in April of 2000. He had marked them neither ``support'' nor 
``oppose'', but they were returned without a statement of opposition. 
And what happened? What happened is, even though those blue slips were 
returned by Senator Abraham, there still were no hearings given to the 
Michigan nominees to the Sixth Circuit.

  There was also an Ohio nominee named Kent Markus who was nominated to 
the Sixth Circuit. In his case, both home State Senators indicated 
their approval of his nomination, but nonetheless, this Clinton nominee 
was not granted a Judiciary Committee hearing, and his troubling 
account of that experience shed some additional light on the Michigan 
  He testified before the Judiciary Committee last May, and said the 
following. This is the Ohio Clinton nominee to the Sixth Circuit:

       To their credit, Senator DeWine and his staff and Senator 
     Hatch's staff and others close to him were straight with me. 
     Over and over again they told me two things: One, there will 
     be no more confirmations to the Sixth Circuit during the 
     Clinton administration, and two, this has nothing to do with 
     you; don't take it personally--it doesn't matter who the 
     nominee is, what credentials they may have or what support 
     they may have.

  Then Marcus went on. This is his testimony in front of the Judiciary 

       On one occasion, Senator DeWine told me ``This is bigger 
     than you and it's bigger than me.'' Senator Kohl, who kindly 
     agreed to champion my nomination within the Judiciary 
     Committee, encountered a similar brick wall. . . . The fact 
     was, a decision had been made to hold the vacancies and see 
     who won the Presidential election. With a Bush win, all those 
     seats could go to Bush rather than Clinton nominees.

  We are not alone in the view that what occurred with respect to these 
Sixth Circuit nominees was fundamentally unfair. Even Judge Gonzales, 
the current White House counsel, has acknowledged it was wrong for the 
Republican-led Senate to delay action on judicial nominees for partisan 
reasons, at one point even calling the treatment of some nominees 
``inexcusable,'' to use his word.
  The tactic used against the two Michigan nominees should not be 
allowed to succeed, but as determined as we are that it not succeed, we 
are equally determined that there be a bipartisan solution, both to 
resolve a current impasse, but also for the sake of this process. There 
is such an opportunity to have a bipartisan solution because there are 
four Michigan vacancies on the Sixth Circuit.
  In order to achieve a fair resolution, Senator Stabenow and I have 
made a number of proposals, and we have accepted a number of proposals. 
We proposed a bipartisan commission to recommend nominees to the 
President. Similar commissions have been used in other States. The 
commission would not be limited to any particular people. The two 
nominees of President Clinton may not be recommended by a bipartisan 
commission. Of greater importance, the existence of recommendations of 
a commission are not binding on the President.
  The White House, in response to this suggestion--again, even though 
it was used in other States--has said that the constitutional power to 
appoint judges rests with the President, and of course it does. So 
there is no way anyone would propose or should propose that a 
bipartisan commission be able to make recommendations which would be 
binding upon the President of the United States, nor is the 
recommendation binding upon the Senate of the United States. It is 
simply a recommendation. This has occurred in other States under these 
and similar circumstances, and there is no reason why it should not be 
used here.
  We also, again, were given a suggestion by the then-chairman of the 
Judiciary Committee, Senator Leahy, who has tried his very best to 
figure out a solution to this deadlock. Senator Leahy made a suggestion 
which was acceptable to both Senator Stabenow and me. It was acceptable 
even to the then-Republican Governor of the State of Michigan, Governor 
Engler, but it was rejected by the White House.

  We have an unusual opportunity to obtain a bipartisan solution. It is 
an opportunity which has been afforded to us by the large number of 
vacancies in Michigan on the Sixth Circuit Court of Appeals. Finding 
that bipartisan path would be of great benefit, not just as a solution 
to this problem but to set a positive tone for the resolution of other 
judicial disputes as well.
  In addition to the points which I have made, we made the additional 
point at the Judiciary Committee relative to the qualifications of 
Judge Saad. We indicated then and we went into some detail then that it 
is our belief that his judicial temperament falls below the standard 
expected of nominees to the second highest court in this country.
  The Judiciary Committee considered a number of issues relating to 
that subject, judicial temperament or shortfall thereof, of this 
nominee in a closed session of the Judiciary Committee. I will not go 
into detail further, except to say we have made that point. We feel 
very keenly about that issue.
  The vote in the Judiciary Committee was 10 to 9 to report out this 
nomination. It was a vote along party lines. The temperament issue, 
however, was raised, and properly so, in the Judiciary Committee, as 
well as this basic underlying issue which I have spent some time 
outlining this afternoon.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. McCONNELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be dispensed with.
  The PRESIDING OFFICER (Mr. Allard). Without objection, it is so 

                            The Iraq Debate

  Mr. McCONNELL. Mr. President, I rise today to discuss a matter of 
great relevance to the debate about the war in Iraq and the recent 
Senate report on the intelligence community. This report has 
illuminated a subject of considerable controversy and partisan 
criticism of the President.
  I also rise to speak about the importance of maintaining a basic 
standard of fairness in American politics.
  I am talking about the controversy that erupted over the infamous 

[[Page S8523]]

words'' in the State of the Union Address that Senator Kerry and 
numerous Senate Democrats and the media cited in accusations that the 
President misled the country into war.
  On January 28, 2003, President Bush told the American people that:

       The British government has learned that Saddam Hussein 
     recently sought significant quantities of uranium from 

  That was in the President's State of the Union address in January 
  When doubt surfaced about some--but not all--of the evidence 
supporting this claim, Joe Wilson, who had traveled to Niger to 
investigate an aspect of the intelligence, penned an op-ed in the New 
York Times accusing the administration of manipulating intelligence.
  Not pausing for a full investigation, a partisan parade of Democratic 
Senators and Presidential candidates took to the streets to criticize 
the President and accuse him of misleading the Nation into war, a very 
serious charge.
  Sensing a scandal, the media pounced.
  NBC aired 40 reports on Wilson's claim. CBS aired 30 reports, while 
ABC aired 18.
  Newspapers did not hold back either. The New York Times printed 70 
articles reinforcing these allegations, while the Washington Post 
printed 98.
  Pundits and politicians gorged themselves on the story.

  Joe Wilson rose to great fame on the back of this inflammatory 
charge. He wrote a book for which he received a five-figure advance, he 
was lionized by the liberal left, and he became an adviser to Senator 
Kerry's Presidential campaign, a campaign to which he is also a 
financial contributor.
  Of course, we now know Wilson's allegation was false. And we know the 
chief proponent of this charge, Joe Wilson, has been proven to be a 
  After more than a year of misrepresentation and obfuscation, two 
bipartisan reports from two different countries have thoroughly 
repudiated Wilson's assertions and determined that President Bush's 16-
word statement about Iraq's effort to procure uranium from Niger was 
well founded.
  In fact, the real 16-word statement we should focus on is the one 
from Lord Butler's comprehensive report about British intelligence. 
Here is what he had to say:

       We conclude that the statement in President Bush's State of 
     the Union address . . . is well founded.

  Let me repeat Lord Butler's statement:

       We conclude that the statement in President Bush's State of 
     the Union address . . . is well founded.

  Those are 16 words to remember.
  It is now worth the Senate's time to consider Mr. Wilson's claims.
  Claim No. 1 is Wilson's assertion that his Niger trip report should 
have debunked the State of the Union claim.
  On this bold allegation, the Senate's bipartisan report included this 
important conclusion:

       The report on the former Ambassador's trip to Niger, 
     disseminated in March 2002, did not change any analysts' 
     assessments of the Iraq-Niger uranium deal. For most 
     analysts, the information in the report lent more credibility 
     to the original CIA reports on the uranium deal. . . .

  Let me repeat:

       For most analysts, the information in the report lent more 
     credibility to the original CIA reports on the uranium deal. 
     . . .

  Claim No. 2 is similarly egregious.
  According to the Washington Post, ``Wilson provided misleading 
information to the Washington Post last June. He said then that the 
Niger intelligence was based on a document that had clearly been forged 
. . . '' But ``the documents . . . were not in U.S. hands until eight 
months after Wilson made his trip to Niger.''
  Predictably, this bombshell appeared on page A9. Page A9, Mr. 
President. After this story had previously enjoyed extensive coverage 
on Page A1.
  There were indeed document forgeries, but these documents were not 
the only evidence that convinced foreign intelligence services about 
Iraq's efforts to purchase uranium.
  Damningly, the former Prime Minister of Niger himself believed the 
Iraqis wanted to purchase uranium and according to the Financial Times:

       European intelligence officers have now revealed that three 
     years before the fake documents became public, human and 
     electronic intelligence sources from a number of countries 
     picked up repeated discussion of an illicit trade in uranium 
     from Niger. One of the customers discussed by the traders was 

  And the Wall Street Journal has reported that:

       French and British intelligence (services) separately told 
     the U.S. about possible Iraqi attempts to buy uranium in 

  Mr. President, when the French corroborate a story that Iraq is 
seeking WMD, you're probably in the right ballpark.
  Indeed, the Senate's bipartisan report concluded that at the time:

     it was reasonable for analysts to assess that Iraq may have 
     been seeking uranium from Africa based on CIA reporting and 
     other available intelligence.

  Claim No. 3 is Wilson's repeated denial that his wife, Valerie Plame, 
a CIA analyst, never recommended him for the Niger trip.
  In his ironically titled book, The Politics of Truth, Wilson claimed:

       Valerie had nothing to do with the matter She definitely 
     had not proposed that I make the trip.

  In fact, the bipartisan Senate Intelligence Report includes testimony 
that Plame ``offered up his name'' and quotes a memo that Plame wrote 
that asserts ``my husband has good relations with Niger officials.''
  The New York Times recently reported that:

       Instead of assigning a trained intelligence officer to the 
     Niger case, though, the C.I.A. sent a former American 
     Ambassador, Joseph Wilson, to talk to former Niger officials. 
     His wife, Valerie Plame, was an officer in the 
     counterproliferation division, and she had suggested that he 
     be sent to Niger, according to the Senate report.

  That story can be read on Page A14 of the New York Times.
  Claim No. 4 is Wilson's allegation that the CIA warned the White 
House about the Niger claim and that the White House manipulated 
intelligence to bolster its argument for war. Wilson charged:

       The problem is not the intelligence but the manipulation of 
     intelligence. That will all come out despite (Sen.) Roberts' 
     effort to shift the blame. This was and is a White House 
     issue, not a CIA issue.
       This reckless charge by Wilson was, we know, repeated by 
     many of the President's critics.

  Of course, it is not true. It simply is not true.
  The Senate Intelligence Report determined the White House did not 
manipulate intelligence, but rather that the CIA had provided faulty 
information to policymakers. And the Washington Post recently reported 
that ``Contrary to Wilson's assertions the CIA did not tell the White 
House it had qualms about the reliability of the Africa intelligence.'' 
(Susan Schmidt, Washington Post, A9, 7/10/04)
  Again: Front page news on Page A9.
  According to the New York Times and the Senate Intelligence Report, 
Joe Wilson admitted to Committee staff that some of his assertions in 
his book may have, quote, ``involved a little literary flair.''
  ``Literary flair'' is a fancy way of saying what ordinary people 
shooting the breeze on their front porches all across America call by 
its real name: a lie. That is what it is.
  So, the truth is Joe Wilson did not expose the Administration; in 
fact, he has been exposed as a liar.
  He misrepresented the findings of his trip to Niger, he fabricated 
stories about recognizing forgeries he never saw, he falsely accused 
the White House of manipulating intelligence, and he misrepresented his 
wife's role in promoting him for the mission.
  Joe Wilson's false claims have been exposed, but the networks aren't 
rushing to correct the story. Will NBC correct the 40 times it ran 
Wilson's claims, will CBS correct the 30 times, will ABC correct the 
  To be sure, a few networks and newspapers have noted the Senate 
Intelligence Report conclusions, but where is the balance? Where are 
the lead stories? Where are the banner headlines? In short, where is 
the fairness?
  Sadly, that is the state of political coverage in this election year. 
Screaming charges about the President made on A1, repudiation of the 
charges on A9, if they are made at all. Is that fair?
  What of the political campaigns? It's a small wonder the Democrat 
candidates for President and their supporters aggressively picked up 
the Wilson claim. After all, the media was driving the train, so why 
not hitch a ride?
  However, now that Wilson's false claims have been exposed, shouldn't 

[[Page S8524]]

basic sense of fairness prevail? Shouldn't the partisans admit they 
were wrong, too?
  For example, some of my colleagues in the Senate should ask 
themselves if it's now appropriate to distance themselves from Joe 
Wilson's distortions. Speaking on this floor on March 23, the Minority 
Leader praised Wilson and accused the Administration of retaliating 
against him:

       When Ambassador Joe Wilson told the truth about the 
     administration's misleading claims about Iraq, Niger, and 
     uranium, the people around the President didn't respond with 
     facts. Instead they publicly disclosed that Ambassador 
     Wilson's wife was a deep-cover CIA agent.

  Just last month, Senator Daschle noted:

       Sunlight, it's been said, is the best disinfectant. But for 
     too long, the administration has been able to keep Congress 
     and the American people in the dark . . . other serious 
     matters, such as the manipulation of intelligence about Iraq, 
     have received only fitful attention.

  I hope he will acknowledge now the inaccuracy of his statement, and 
allow the sunlight to shine on Ambassador Wilson's fictions.
  Senator Kerry welcomed Wilson onto his campaign team of advisors, and 
his campaign hosts Wilson's website, which carries a disclaimer that it 
is ``Paid for by John Kerry for President, Inc.''
  The Kerry/Wilson website includes a collection of articles by and 
about Joe Wilson that propound his baseless allegations against the 
Bush Administration, which I don't have time to go into today. Suffice 
it to say that showcasing Wilson's discredited views should at least be 
met with some acknowledgement that he was wrong all along.
  Perhaps we can learn a thing or two from the recent episode involving 
Sandy Berger.
  Berger, an advisor to President Clinton and Senator Kerry stepped 
down from the Kerry campaign. He's under investigation for removing and 
possibly destroying classified documents being reviewed by the 9/11 
  Were I to engage in a little literary flair, I might say it seems 
Sandy walked out of the National Archives with some PDBs in his BVDs, 
and some classified docs in his socks. At any rate, I think it is 
appropriate, and politically wise, for him to leave the Kerry campaign.
  It is clear Senator Kerry approved of Mr. Berger's departure. He 
should certainly ask the discredited Mr. Wilson to leave the team as 
  I close with a simple observation. I believe vigorous political 
disagreements are the heart of a strong democracy. When our debates are 
rooted in fact, impassioned political disagreement makes our country 
  I also believe Americans value fundamental fairness--fundamental 
fairness--and deserve a news media that reflects this value. How is it 
fair to report an accusation with blaring page 1 headlines and around-
the-clock television coverage and not give a slam-dunk repudiation of 
the charge the same kind of attention?
  We will watch over the next few days to see if fundamental fairness 
will be met, and if those who championed Mr. Wilson's charges will set 
the record straight.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I compliment the distinguished majority 
whip, the assistant floor leader, for what is an excellent set of 
remarks, long overdue and very much on point.
  I am on the Senate Select Committee on Intelligence. I remember when 
this whole brouhaha came up, how demeaned the President of the United 
States was, not only by the media but by this man, Ambassador Wilson, 
who immediately took great glee in slamming the President because of 16 
words that happened to be accurate. We could not talk about it before 
now, but the British findings show the President was accurate. And I, 
for one, am very happy for the Butler report and for what came out.
  I agree with the distinguished Senator from Kentucky that this was 
page 1 offensive media to the President of the United States, 
undermining what he was saying, what he was doing, and what we have 
backed him on this floor in doing. Now that this man has been caught in 
these shall I say discrepancies--some might be a lot stronger than 
that--we see hardly any comments about it. But having said that, I have 
to say I have been reading the Washington Post, and they have acted 
quite responsibly. Many of the other media have not acted that way. But 
the distinguished Senator from Kentucky covered this matter very well.
  I feel sorry whenever partisan politics trumps truth, whenever, in 
the interest of trying to get a political advantage from one side or 
the other, anybody of the stature of a former Ambassador of the United 
States would participate in distorting the record, especially when 
he knew better.

  So again, I thank my colleague.
  Mr. McCONNELL. Mr. President, I thank my friend from Utah. Hopefully, 
this will be the beginning of a wave of coverage both on the networks 
and in the newspapers on correcting the record and making it clear that 
Mr. Wilson's assertions are demonstrably false and have been so found 
by two different important reports.
  Mr. HATCH. Mr. President, I thank my colleague. I want to comment 
that anybody with brains, when they saw that Iraqi team and knew of the 
Iraqi team--of course, they could not say much about it until now--knew 
the Iraqi team had gone over to Niger, why else would they have spent 
the time? Niger had hardly any exportable products other than food, 
except for yellowcake uranium. Why would they waste their time going to 
  I remember at the time thinking: This smells, this argument that the 
President has misused 16 words and that the CIA should be held totally 
responsible because those 16 words were wrong. And now we find they 
were not necessarily wrong. In fact, they were right.
  That smacks of this whole matter of partisanship with regard to the 
current Presidential race. We have our two colleagues on the other side 
who are now running for President and Vice President who voted for our 
actions in Iraq. At least one of them spoke out on how serious the 
actions of the Iraqi regime under Saddam Hussein were, voted for it, 
and now they are trying to weasel out because they voted against 
funding it, saying they wanted to get it done right. Well, that is a 
nice argument, except that we have well over 100,000 of our young men 
and women over there, and others as well, who are put at risk if we do 
not fund the effort once it has started.
  Secondly, I heard lots of comments from the other side as to weapons 
of mass destruction. They knew Saddam Hussein had them in the early 
1990s. The U.N. knew they had them. Almost every Democrat of substance 
spoke out that he had them, were concerned about the fact that he had 
weapons of mass destruction, that he was trying to obtain weapons of 
mass destruction, including the distinguished candidate for President 
in the Democratic Party.
  And to get cheap political advantage, they have tried to undermine 
the President of the United States because, so far, we have not been 
able to discover except small evidences of actual weapons of mass 
  What has not been said, for the most part, is any basement in 
Baghdad, any swimming pool in Baghdad--a city the size of Los Angeles--
could store all of the biological weapons necessary to kill a whole 
city such as Baghdad or Los Angeles and could store all of the chemical 
weapons that could cause havoc all over the world. The fact we have not 
found them yet does not mean they are not there.
  It does appear the nuclear program Saddam Hussein had authorized in 
the early 1990s--and had been well on its way to accomplishing the 
development of a nuclear device--was not as forward advanced as many of 
us thought. But there is no question they had the scientists in place. 
There is no question they had the knowledge in place. There is no 
question they had the documents in place. There is no question he 
wanted to do that, no question that he would have done it if he could.
  I think as time goes on, more and more information will come out that 
will indicate that the President of the United States has taken the 
right course, with the help of this whole body. It seems strange to me 
that so many are trying to weasel out of the position they took earlier 
in backing the President of the United States and in backing our 
country and in backing

[[Page S8525]]

our soldiers, and are trying to make political advantage out of some of 
the difficulties we have over there.

  Now that political advantage has been tremendously diminished--
tremendously diminished--as of the time that jurisdiction was turned 
over to the Iraqis. They are now running their country, with us as 
backup to help them, to help bring about the freedoms all of us in 
America take for granted every day. I doubt they will ever have the 
total freedoms we take for granted every day, but they have a lot more 
freedom now than they ever even contemplated or thought possible under 
the Saddam Hussein regime.
  That is because of our country. That is because of our young men and 
women who have sacrificed. I particularly resent it when, for cheap 
political advantage, some of our colleagues get up and moan and groan 
about what is going on over there. Every time they do it, it undermines 
the very nature of what our young men and women are sacrificing to 
  Fortunately, it is the few who do that. But nobody on this floor on 
either side should be undermining our young men and women over in Iraq, 
who are heroically serving, some dying--over 900, as we stand here 
  Cheap political advantage--that is the era we are in, I take it. Both 
sides from time to time have used efforts to accomplish cheap political 
advantage, but I have never heard it worse than what I have seen this 
year against this President. I have never seen a more vicious group of 
people than the outside commentators who hate President Bush. In all 
honesty, we can sit back and let these terrorists run around this world 
and do whatever they want to do and act like it won't affect us or we 
can take action to try to solve the problem.
  It is a long-term problem; it is not a short-term one. It is going to 
take a lot of courage and good leadership, and it is going to take 
people who don't just quit and hope they will go away. They are not 
going to go away. These people are committed ideologues. They are 
theocratic ideologues. And in many respects throughout the history of 
the world, that is where most of the really dangerous difficulties 
come. It is through vicious, radical, theocratic ideologues. Frankly, 
that is what we are facing. Anybody who thinks this is going to be just 
an easy slam dunk to resolve has not looked at any of the intelligence, 
has not thought it through, and really has not spent enough time 
worrying about it on the Senate floor or otherwise.
  I have not always agreed with our President. I probably have been 
wrong when I haven't. The fact is, I sure agree with him in supporting 
our troops and supporting freedom in the world. Think about it. If 
Saddam Hussein had been allowed to go on unchecked, not only would 
millions of Iraqis be kept in terrible conditions, upwards of a million 
killed viciously by that regime, but ultimately he would have developed 
nuclear weapons, as he was trying to do in the early 1990s and came 
close to doing by everybody's measure who knew anything about it. Had 
that occurred and we didn't do anything about it, guess who would have 
had to. And if they had to, as they did in the early 1980s in taking 
out the nuclear reactor, we would have world war III without question.
  So there is a lot involved here. This is not some simple itty-bitty 
problem, nor is it something conjured up by the President of the United 
States, nor is it something that really intelligent, honest, bipartisan 
people should ignore. We need to work together in the best interests of 
this country and of the world to make sure that these madmen do not 
control the world and continue to control our destinies and that these 
madmen don't get so powerful that they can do just about anything they 
want to in the world. You can see how they try to intimidate just by 
threats and even action. Well, great countries cannot give in to 
threats, nor can we give in to offensive action that needs to be dealt 
with. This country has led the world in standing for freedom.
  I have to say that I loved the comment of Colin Powell when somebody 
in a foreign land snidely accused the United States of attempted 
hegemony or trying to be imperial. He basically said: Our young men and 
women have given their lives all over this world for freedom, and the 
only ground that we have ever asked in return is that in which we bury 
our dead. That is true to this day. I think if the rest of the world 
looks at it honestly, they will have to say America really does stand 
for that principle: freedom and decency and honor and justice, not just 
in this land but for other lands as well.
  Mr. President, as I understand it, we are on the Saad nomination.
  The PRESIDING OFFICER (Mr. Talent). The Senator is correct.
  Mr. HATCH. As we begin the debate on this nomination, I want to put 
it in the larger context of the judicial nomination process.
  On May 9, 2001, President Bush nominated 11 outstanding individuals 
to serve on the Federal bench. I would note that this was months 
earlier than previous new Presidents, giving the Senate plenty of time 
to begin considering his nominees. In the 3-plus years--over 1,100 
days--since those nominations, the Senate has confirmed only 8 of the 
first 11 nominees. By comparison, the previous 3 Presidents saw their 
first 11 appeals court nominees all confirmed in an average of just 81 
days following their nomination. We are now 1,100 days past. Not so for 
President Bush.
  While three of his first nominees were confirmed within 6 months, 
many others waited for 2 years or more before they were confirmed. But 
even this long wait was better than the fate of the three remaining 
nominees who have been subjected to filibusters.
  One of those, Miguel Estrada, waited for more than 2\1/2\ years and 
became the target of the first filibuster against a judicial nominee in 
American history. This Hispanic man deserved better treatment, but he 
was mistreated for crass partisan purposes. Though a bipartisan 
majority of Senators supported Miguel Estrada, he had to withdraw after 
an unprecedented seven cloture votes, meaning seven attempts to try and 
get to a vote where he could have a vote up or down. Those seven 
cloture votes, any one of which would have ended the filibuster and 
allowed that vote up or down, he went through seven of them, the most 
in the history of this country for any judicial nominee. By the way, 
the only nominees who have ever had to go through cloture votes in a 
real filibuster or in real filibusters have been President Bush's 
nominees. We have had cloture votes before, but there never was any 
question that the nominees were going to get a vote in the end.
  Several weeks prior to those first nominations, shortly after 
President Bush's inauguration, the Democratic leader stated that the 
Senate minority would use ``whatever means necessary'' to block 
judicial nominees they did not like. We have seen the fulfillment of 
that statement as a variety of techniques have been employed to delay 
or obstruct the confirmation of nominees, including bottling up 
nominees in committee, injecting ideology into the confirmation 
process, seeking all unpublished opinions, requesting nominees to 
produce Government-owned confidential memoranda, repeated rounds of 
written questions, and multiple filibusters. It is a sad commentary on 
the deterioration of the judicial confirmation process that we are now 
approaching double-digit filibusters in the U.S. Senate of 10 judges or 
  Let me reiterate a few points which I made yesterday concerning the 
process of confirming judges. Despite this range and frequency of 
obstructionist tactics which we have seen, some of them entirely new in 
American history, the Senate has confirmed 198 judges during the past 3 
years. I will note that this is behind the pace of President Clinton in 
his first term. And the minority has made even these confirmations as 
difficult as possible. Yet some of my colleagues think that the 
constitutional duty to advise and consent has a time clock attached to 
it and that the time has run out for the Senate to do its duty. I 
reject this analysis, either that the previous agreement to allow the 
vote on the 25 judges was the sum total of our work in the Senate or 
the notion that judicial nominations cannot be confirmed after some 
mythical deadline is announced.
  There are plenty of examples of confirmation of judges in 
Presidential election years during the fall, some of which occurred 
during or after the election was held. Stephen Breyer is a perfect 
illustration. He now sits on the Supreme Court of the United States.

[[Page S8526]]

Stephen Breyer was confirmed to the First Circuit Court of Appeals. 
That is just one example. I was the one who helped make that possible 
because Reagan had been elected.
  The Republicans had won the Senate for the first time in decades. 
There was no real reason to allow what many thought was a liberal 
Democrat to be appointed to any court at that point or to be confirmed 
to any court at that point. But Stephen Breyer was an exceptional man. 
He not only had been chief of staff to Senator Kennedy on the Judiciary 
Committee, and not only was he a Harvard law professor and a brilliant 
legal theorist, he was a very honest, decent, honorable man. I helped 
carry that fight. It wasn't much of a fight in the end because the 
Republicans agreed, and we confirmed Stephen Breyer late in the year 
after the election took place.
  I helped facilitate that confirmation which took place after the 
November 1980 presidential election. That nomination was made by 
President Carter, who had just been defeated by President Reagan, and 
yet we acted on it. I note that Senator Thurmond was the ranking member 
at that time. Yet his name continues to be invoked as the authority of 
a binding precedent. I reject the notion of this purported rule and 
would hope that the service of the longest serving and oldest Member to 
have served in this body would not be used in the manner I have heard 
repeated in the committee and on the Senate floor.
  Besides, Senator Thurmond was chairman of the committee, and at one 
time he did say: We have had enough confirmations, and this is what we 
are going to do. We are going to stop this year.
  But even then he didn't.
  Under the Senate Democrats' theory, the Senate has apparently 
confirmed enough judges. The remaining vacancies, half of which are 
classified as judicial emergencies because of the backlog, just don't 
seem to matter to them. According to their analysis, because of some 
acceptable vacancy rate or because of the mythical time clock, the 
remaining 25 judges pending before the Senate should be dismissed out 
of hand. This is not logical, nor is it the proper approach to take 
under the Constitution.
  I will also respond to some of the arguments made that Senate 
Democrats have only rejected six or seven nominees. The fact is, the 
Senate has not rejected the nominees which have been filibustered. If 
they have the votes to defeat the nominee, then let those votes be cast 
and let the results stand. But a minority of Senators are denying the 
Senate from either confirming or defeating some of these nominees. That 
is what we are seeking today--an up or down vote.
  Mr. President, unfortunately, one of the battlegrounds of this 
judicial obstructionism has been the Sixth Circuit Court of Appeals. 
Despite President Bush's attempt to fill four critical vacancies on 
that court, and two district vacancies in Michigan, these nominations 
remained stalled in the Senate. There are many factors contributing to 
the stalemate we have found ourselves in with regard to confirmations 
on the Sixth Circuit, some of which go back to the Clinton 
administration. I will discuss that in detail at a later point, but for 
now, everyone knows that I have been working to reach an accommodation 
that would help move this process forward.
  I have great respect for Senators Levin and Stabenow. I have worked 
for many years with Senator Levin and have reached agreements with him 
on many difficult issues. For example, Senator Levin and I worked with 
Senators Biden and Moynihan to dramatically revise the regulations 
pertaining to heroin addiction treatment. That effort is paying off. I 
remain hopeful that we can do so here.
  On this issue, I have continued to work with Senators Levin and 
Stabenow. I have carefully listened to their concerns. And while the 
Michigan Senators' negative blue slips were accorded substantial 
weight--that is why this has taken so long--I delayed scheduling a 
hearing on any of the Michigan nominees because of the Michigan 
Senators' views. Their negative blue slips are not dispositive under 
the committee's Kennedy-Biden-Hatch blue slip policy. It was started by 
Senator Kennedy, confirmed by Senator Biden, and I have gone along with 
my two liberal colleagues on the committee.
  I don't think there is any doubt that I have attempted to reach an 
accommodation that would fill these seats. Unfortunately, my efforts 
have not been successful. I remain hopeful that we can come to a 
resolution, and I will keep trying to do so. But I must emphasize, in 
my view, integral to any accommodation is the confirmation of Judge 
Saad, Judge Griffin, and Judge McKeague--at least votes up or down. 
Since they have a majority of people in the Senate who would vote for 
them, I believe they would be confirmed in the end.
  These are exceptional individuals. Judge Saad and Judge Griffin both 
serve on the Michigan Court of Appeals. Judge McKeague is a district 
Judge for the United States District Court for the Western District of 
Michigan. He was unanimously confirmed by the U.S. Senate.
  It has been nearly 1 year since the Judiciary Committee first 
considered the nomination of Henry W. Saad, who has been nominated for 
a position on the United States Court of Appeals for the Sixth Circuit. 
This is an historic appointment. Upon his confirmation, Judge Saad will 
become the first Arab-American to sit on the Sixth Circuit, which 
covers the States of Kentucky, Ohio, Tennessee, and Michigan.
  It is long past time for the Senate to consider Judge Saad's 
nomination. He was first nominated to fill a Federal judgeship in 1992, 
when the first President Bush nominated him for a seat on the United 
States District Court for the Eastern District of Michigan. The fact 
that he did not get a hearing may have worked to his benefit, since he 
was appointed in 1994 by Governor Engler to a seat on the Michigan 
Court of Appeals. He was elected to retain his seat in 1996 and again 
in 2002, receiving broad bipartisan support in each election.
  On November 8, 2001, President Bush nominated Judge Saad for a seat 
on the Sixth Circuit, the position for which we are considering him 
today. When no action was taken on his nomination during the 107th 
Congress, President Bush renominated him to the Sixth Circuit on 
January 7, 2003. All told, Judge Saad has been nominated for a seat on 
the Federal bench three separate times. It is high time the Senate 
completed action on his nomination.
  Judge Saad's credentials for this position are impeccable. He 
graduated with distinction from Wayne State University in 1971 and 
magna cum laude from Wayne State University Law School in 1974. He then 
spent 20 years in the private practice of law with one of Michigan's 
leading firms, Dickinson, Wright, specializing in product liability, 
commercial litigation, employment law, labor law, school law and libel 
law. In addition, he has served as an adjunct professor at both the 
University of Detroit Mercy School of Law and at Wayne State University 
Law School.
  Judge Saad is active in legal and community affairs. Some of the 
organizations he has been involved with include educational television, 
where he serves as a trustee, the American Heart Association, Mothers 
Against Drunk Driving, and other nonprofit organizations that serve the 
elderly and impaired. As a leader in the Arab-American community, Judge 
Saad has worked with a variety of organizations in promoting 
understanding and good relations throughout all ethnic, racial, and 
religious communities. He is an outstanding role model.
  Judge Saad enjoys broad bipartisan support throughout his State, as 
evidenced by endorsements in his last election by the Michigan State 
AFL-CIO and the United Auto Workers of Michigan. He has received dozens 
of letters of support from leading political figures, fellow judges, 
law professors, private attorneys, the Michigan Chamber of Commerce, 
and a variety of other groups.
  Let me quote from just a few of the letters received in support of 
Judge Saad's nomination. Maura D. Corrigan, Chief Justice of the 
Michigan Supreme Court, wrote: ``Henry Saad has distinguished himself 
as a fair-minded and independent jurist who respects the rule of law, 
the independence of the judiciary, and the constitutional role of the 
judiciary in our tripartite form of government. . . . Judge Saad is a 
public servant of exceptional intelligence

[[Page S8527]]

and integrity. He has the respect of the bench and the bar.'' Other 
judges have written that he is ``a hard-working and honorable 
individual'' and that he is ``an outstanding appellate jurist with a 
strong work ethic.'' Roman Gribbs, a lifelong Democrat and retired 
judge, wrote, ``Henry Saad is a man of personal and professional 
integrity, is fair-minded, very conscientious and is above all, an 
outstanding jurist.'' Judge Saad has clearly earned the respect and 
admiration of his colleagues on the Michigan State court bench. His 
nomination deserves consideration by this Senate.
  I hope that our consideration of Judge Saad's nomination is not 
overshadowed by collateral arguments about the propriety of his 
nomination, the committee blue slip process, an attack on his personal 
character and qualifications, or other diversionary arguments. The 
question before the Senate is the qualifications of Judge Saad to sit 
on the Federal bench.
  We have heard from the other side about the President just 
steamrolling these nominations, without consulting with the home state 
  Mr. SESSIONS. Mr. President, I join the distinguished chairman of the 
Judiciary Committee, Senator Hatch, in supporting Henry Saad for the 
U.S. Circuit Court for the Sixth Circuit. He is an exceptionally 
qualified nominee who has great support in his area. He graduated with 
distinction from Wayne State University and then magna cum laude at 
Wayne State University School of Law. He has served for a decade on the 
Michigan Court of Appeals. He was nominated for this position by former 
President Bush 10 years ago and was held up, blocked, and did not get a 
hearing, and now he is back and being held up again.
  He has the necessary experience to serve. He has been active in his 
community. He is a Heart Association board member, Oakland College 
Community Foundation chairman, member of the board of the Judges 
Association, Michigan Department of Civil Rights hearing referee. He is 
a Community Foundation of Southeast Michigan board member. He has 
written a number of articles on subjects such as employment 
discrimination, AIDS in the workplace, libel standards, and legal 
ethics. He has given a number of speeches, primarily on appellate 
advocacy. He has been nominated for a position as an appellate judge, 
so this is good experience. Appellate judges do not try cases, as the 
Presiding Officer knows. Appellate judges review trials that went on 
before. They review briefs carefully and they hear arguments from 
attorneys involved in a case and who have written briefs in summary, 
and then they make written rulings to decide whether the trial was 
properly tried or not. We need him on this circuit.
  I have to share some thoughts about this matter because it is 
important and something smells bad. It is not good what has occurred 
with regard to this nominee and other nominees to the Sixth Circuit. 
There has been an orchestrated effort to block rule of law nominees for 
some time now.
  The House of Representatives had hearings on this matter some time 
ago and was highly critical about what has occurred. Frankly, I am not 
sure we fully know the story yet of all that occurred. Let's take 
recent history when the Democrats were in the majority in the Senate 
and they controlled the Judiciary Committee and could decide what 
nominees came up for vote.
  The Democrats made a number of questionable decisions, and they took 
care of some outside groups, and they took certain steps that were 
quite significant. A number of nominees were delayed or blocked. As I 
recall, even then there were four, maybe six, vacancies in this 
circuit. Right now, 25 percent of the circuit is vacant. It is an 
emergency situation, according to the courts, because we have so many 
vacancies there.
  Thirty-one assistant United States attorneys--these are the 
prosecutors who try cases every day, not a political group, but a group 
of workhorse attorneys trying cases--have expressed concern about the 
failure to fill these appointments and how long it takes their criminal 
appeals to be decided. But I want to share this with my colleagues 
because I think we might as well talk about it. I wish it had not 
happened, but it has.
  Take the case of Julia Gibbons of Tennessee. She was a very talented 
nominee to the Sixth Circuit early on. When the Democrats were in 
control of the Judiciary Committee, her nomination in 2001 was 
mysteriously slowed down. It did not move. At one point in March of 
2002, Senator McConnell spoke on the floor, and he complained that she 
had waited 164 days and never had a hearing, and we wondered what was 
going on and why this fine nominee was being held up.
  We now know through the release of internal memos that were published 
in newspapers, in the Wall Street Journal and other places that 
discussed this case, what happened. Frankly, I do not think these memos 
should have been made public--under the circumstances, they were, based 
on what I know. But things leak around here. That is the way it is. I 
have to share with this body what occurred.
  What we know is that in April of 2002, there was a staff memorandum 
to Senator Kennedy from his staff that indicates that the NAACP, which 
was a party to a Sixth Circuit case, the Michigan affirmative action 
case to be exact, that they considered to be an important case--this is 
what the memorandum says: That the NAACP

     would like the Judiciary Committee to hold off on any Sixth 
     Circuit nominees until the University of Michigan case 
     regarding the constitutionality of affirmative action in 
     higher education is decided by the en banc, Sixth Circuit. . 
     . .
       The thinking is that the current Sixth Circuit will sustain 
     the affirmative action program, but that if a new judge with 
     conservative views is confirmed before the case is decided, 
     the new judge will be able . . . to review the case and vote 
     on it.

  The Kennedy memorandum further states that some ``are a little 
concerned about the propriety of scheduling hearings based on the 
resolution of a particular case. We are also aware that the Sixth 
Circuit is in dire need of judges.''
  The memorandum goes on to conclude:

       Nevertheless we recommend that Gibbons be scheduled for a 
     later hearing: The Michigan case is important.

  Even though it was understood to be wrong to influence the outcome of 
a pending case, it was recommended that Gibbons be delayed.
  Now, people like to suggest that the holdup in these nominations is 
some flap with the home State Senators, that it is tit for tat. I 
remember a good friend who former President Bush nominated, John 
Smietanka, for this circuit. He was blocked. He was a wonderful 
nominee, a saintly person really, a great judge. He was blocked, so 
they say this is all tit for tat, but I do not think so.
  I am afraid what really is at work is this circuit was narrowly 
divided. In fact, as I recall, the University of Michigan case was 
decided by one vote. Had the new judge been confirmed and voted the 
other way, it would have been a tie vote. That verdict would not have 
come out as it did. So I think there is an attempt to shape the makeup 
of this court. Let's not make any mistake about this whole issue. The 
judiciary debate is not about politics; it is not Republican versus 
Democrat. This debate is about the beliefs, the value judgment, and the 
legal philosophy of President Bush, and I dare suggest a vast majority 
of American citizens. President Bush and the American people believe 
that judges should be bound by the law, they should follow the law, 
they should strictly follow the law, and that unelected, lifetime 
appointed Federal judges are not in power to set social policy because 
they are unaccountable to the public. So that is the big deal.
  There are people who believe otherwise. There are people who can no 
longer win these issues at the ballot box, if they ever could. They 
want judges to declare things that they do not want to have their 
fingerprints on, like taking God out of the Pledge of Allegiance. These 
are activist decisions. So I believe this is a matter far deeper than 
just Republican versus Democrat; it represents a debate about the 
nature of the American judiciary--do we stay true to an Anglo-American 
tradition that judges are not political, that they are independent, 
that they wear that robe to distinguish themselves from the normal 
person, that they isolate themselves from politics, and that they study 
the law and rule on the law?

[[Page S8528]]

That is what I believe a judge ought to do. That is the ideal of 
American law. It is very important that we maintain that.
  When we have nominees held up explicitly to affect the outcome of a 
case that might come before them, a very important and famous case, 
indeed perhaps the most significant case that year--maybe even in the 
last half- dozen years--to be shaped and blocked simply because of that 
case is bad. In fact, after the case was over, Judge Gibbons was 
confirmed 95-0 by this body. There never was any objection to her other 
than they were afraid it would affect the outcome of the case.
  There are vacancies on the Sixth Circuit. The President is empowered 
to make the appointments. He is empowered to make the appointments 
according to the legal philosophies and principles he announced to the 
American people when he ran for office. President Bush declared that he 
was going to nominate and fight for judges who would follow the law, 
not make law, who would show restraint, who would be true to the 
legitimate interpretation of the statutes and the Constitution, not 
using that document to further promote their own personal agendas. That 
is what he has done, and that is what Judge Saad's record is. He is not 
going to impose his values on the people of the Sixth Circuit. That is 
not his philosophy of judging. His philosophy is to follow the law, not 
to make the law. We have no fear of that kind of judge. We ought to 
confirm him.
  The people of this Nation need to know that the Democratic leader, 
Senator Daschle, and the Democratic machine is time after time 
mustering 40 votes to block these nominees from even getting an up-or-
down vote. In fact, when we vote on cloture to shut off debate and we 
have to have 60 votes, we are constantly getting 53, 54, 55 votes for 
these nominees, which is more than enough to confirm them, but we 
cannot shut off the debate and get an up-or-down vote. So by the 
unprecedented use of the filibuster, these judges are not getting an 
up-or-down vote. I say to the American people, they need to understand 
this. I believe the rule of law in this country is jeopardized by the 
politicization of the courts. We must not allow that to happen. I 
believe the collegiality and traditions of this Senate are being 
altered. There is no doubt we have not had filibusters of judges 
before. In fact, about 4 years ago, Senator Leahy was denouncing 
filibusters when President Clinton was in office, and now he is leading 
it. The ranking member of the Judiciary Committee is leading a host of 
filibusters. It is an unprincipled thing.

  I remember Senator Hatch, as chairman of the Judiciary Committee and 
a guardian of the principles and integrity of the Senate, on many 
occasions told Republicans when they said, Well, we do not like this 
judge, we ought to filibuster him, why do we not filibuster him, and he 
said, You do not filibuster judges; we have never filibustered judges; 
that is the wrong thing to do. And we never filibustered President 
Clinton's judges.
  I voted to bring several of them up for a vote and cut off debate 
even though I voted against those judges because they should not be on 
the bench. I did not vote to filibuster the judge, and I think that is 
the basic philosophy of this Senate.
  I hope we will look at this carefully. These nominees are highly 
qualified. They are highly principled. Many of them have extraordinary 
reputations, like Miguel Estrada, Judge Pickering, Bill Pryor, and 
Priscilla Owen from Texas, a justice on the Texas Supreme Court who 
made the highest possible score on the Texas bar exam. These are highly 
qualified people who ought to be given an up-or-down vote. If they were 
given an up-or-down vote, they would be confirmed just like that.
  Unfortunately, we are having a slowdown, unprecedented in its nature. 
If this does not end and we cannot get an up-or-down vote on these 
judges, those of us on this side need to take other steps. And we will 
take other steps. We need to fight to make sure that the traditions of 
this Senate and the constitutional understanding of the confirmation 
process are affirmed and defeat the political attempts to preserve an 
activist judiciary that our colleagues, it appears, want to keep in 
power so that they can further their political agenda, an agenda they 
cannot win at the ballot box.
  I yield the floor, and I suggest the absence of a quorum.
  The PRESIDING OFFICER (Ms. Murkowski). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BYRD. Madam President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                         Omnibus Spending Bill

  Mr. BYRD. Madam President, there are only 22 legislative days left in 
this fiscal year. The Senate seems to be frittering away those precious 
days. To date, the Senate has only passed one appropriations bill, the 
Defense bill. Only four bills have been reported from the Senate 
Appropriations Committee.
  The House has passed nine appropriations bills, but apparently the 
Senate would rather work on political messagemaking than to take care 
of the Nation's vital business. So I fear, once again, that the Senate 
Republican leadership is setting a course for a massive omnibus 
spending bill. That is what it looks like. That is what we are going to 
do, have a massive omnibus spending bill, in all likelihood.
  This year, with the failure of the Senate Republican leadership to 
even bring the Homeland Security bill before the Senate, the Omnibus 
appropriations bill may include as many as 12 of the 13 annual 
appropriations bills. That is very conceivable to ponder.
  On July 8, Homeland Security Secretary Tom Ridge and FBI Director 
Robert Mueller announced that another terrorist attack is likely before 
the November elections, yet the Homeland Security appropriations bill, 
which the committee reported 4 weeks ago, has not even been presented 
to the full Senate for its consideration. What is wrong? What is wrong 
with this picture? Talk about fiddling while Rome burns. The flames are 
all around us.
  The Senate Republican leadership is setting the stage for another one 
of these massive spending bills that may be brought up in the Senate in 
an unamendable form. And one shudders to think what will go on behind 
closed doors. Who among the 100 Senators will be in the meetings that 
produce a massive bill that appropriates over $400 billion for 
veterans, education, homeland security, highways, agriculture, and the 
environment? Who among the 100 Senators will be in the meetings when 
decisions are made about including provisions on drug importation, gun 
liability, farm bill issues, nuclear waste storage at Yucca Mountain, 
overtime rules, or on the outsourcing of government services? Does 
anybody know?
  And, who knows what surprises, that were never debated or even 
contemplated in the Senate, will find their way into such an omnibus? 
What kind of interesting bugs will crawl into this big bad apple of a 
bill? I cannot tell you how many Senators will be in the room, but I 
can assure you of one thing. The White House will be there. You can bet 
on that. They will be there with their pet projects and their pet 
peeves and their opportunities to move certain items into their 
favorite States--doing their bidding, legislating right along with the 
Senators. They will be there. White House bureaucrats and soothsayers 
will suddenly become legislators for a day, or perhaps several days.

  That is not the way our Constitution contemplated the writing of 
appropriations bills. The Framers believed that Congress ought to have 
the power of the purse. This White House would like to have it. They 
would like very much to have it. But all of those constitutional 
niceties get blurred and blended when it comes time to deal on Omnibus 
appropriations bills. The checks and balances gets thrown out the 
window when it comes time to deal with Omnibus appropriations bills.
  One could conclude that the only thing the President wants from the 
fiscal year 2005 appropriations bill is the Defense appropriations 
bill. That is the only thing the President would want from the 2005 
appropriations process--the Defense appropriations bill.
  On June 24, 2004, in its Statement of Administration Policy, the 
White House urged the Congress to pass the Defense bill before the 
start of the August recess. Why?
  In February, the President did not ask for one thin dime, not one 
thin dime did he ask for as far as the costs

[[Page S8529]]

of the war in Iraq--nothing. Administration officials had the temerity 
to insist that the costs of the war were not knowable. Then suddenly, 
on May 12, 2004, the President saw the light and realized that he 
needed more money for the war in Iraq. It must have come to him in a 
sudden vision. So, like a teenage driver, he put the foot on the gas 
and insisted that the Congress give him a $25 billion blank check for 
the escalating costs of his war in Iraq.
  With the help of Senator Stevens of Alaska, the blank check got 
canceled, but the defense conference report will include the $25 
billion in additional funds. The President will get the one thing he 
wanted out of this year's appropriations process; he will get the 
Defense appropriations bill.
  So I must ask the American people, why is it the President has not 
sent messages to the Congress urging prompt action on the bill that 
funds the veterans health care system? I am sure the veterans are 
concerned about what is going to happen with respect to their needs.
  Moreover, does the President not know that the bill that funds our 
Nation's schools is stuck in subcommittee? What about the 
appropriations bill that funds our highway system that has not yet been 
considered by the House or the Senate? In February, the President 
proposed to put a man on Mars, but the bill that funds the space 
program has not been marked up by either the House or Senate 
appropriations committees.
  According to President Bush, Congress must urgently send him the 
Defense appropriations bill; but for all of the other appropriations 
bills, the attitude is ho hum; so what.
  According to the administration, we are facing another terrorist 
attack. Are we not even going to debate whether a 5-percent increase 
for the Department of Homeland Security is enough?
  Last year, we fell prey to a 7-bill omnibus, but at least the Senate 
debated as freestanding bills 12 of the 13 bills. Now we are down to 
only one debate this year on the Defense bill. That is one bill, and 
only one debate this year, on the Defense bill.
  Where do we go from here on funding the needs of the people? One of 
the options that has been discussed by the Republican leadership is to 
pass the full-year continuing resolution and leave town, get out of 
town, catch the next train, all aboard. That is right. The exalted 
servants of the people may just decide to enjoy a summer vacation if 
some in the Republican leadership have their druthers. What does it 
matter if all of the Federal Government, except the Pentagon, operates 
on automatic pilot for a full year? Who needs guidance from the 
Congress on the priorities? Who needs careful scrutiny of Federal 
programs? What about the new initiatives? Shouldn't they be under 
careful scrutiny? Shouldn't questions be asked and questions answered?
  Let me give you, my colleagues, a few examples of what would happen 
under a full-year continuing resolution. If that is what you want, I 
tell you what you are going to get.
  If the Senate Republican leadership refuses to allow the Senate to 
debate the Homeland Security appropriations bill, important funding in 
new programs would not be available to the Department.
  As we all know, on March 11, 2004, nearly 200 people were killed by a 
series of bombs detonated on the transit system in Madrid, Spain. The 
Department of Homeland Security responded by sending out a list of 
security recommendations for mass transit and rail systems in the 
United States. These recommendations included moving garbage cans and 
asking commuters to be more alert to suspicious people and packages, 
like unattended backpacks. However, despite my efforts, no moneys were 
approved for fiscal year 2004 for mass transit or rail security. Are we 
comatose in the Senate? Perhaps we better reach back in our desks 
somewhere and get our living wills.

  On an average workday, 32 million people travel on mass transit. Get 
that, 32 million people travel on mass transit on an average workday. 
However, under a continuing resolution, there would be no funding to 
help secure our mass transit and rail systems. There would be no funds 
for additional law enforcement presence, no funds for additional K-9 
teams, no funds for additional surveillance, no funds for additional 
public education about the threat. Is that OK with the Senate?
  Following the tragic events of September 11, the administration 
established a firm goal for the number of Federal air marshals so that 
a high percentage of critical flights could be protected. The exact 
number of air marshals is classified, but the fact is, the Federal air 
marshals program has never reached the staffing level called for in the 
wake of the September 11 attacks.
  Instead, the White House has allowed the number of air marshals to 
fall by 9 percent, falling far below the goal. As air marshals leave 
the program, budget constraints prohibit the hiring of replacements. 
The number of air marshals continues to dwindle and the number of 
critical flights they are able to cover remains on a steady downward 
spiral. If forced to operate under a continuing resolution, the number 
of air marshals protecting domestic and international flights could 
fall by another 6 percent, putting Americans in greater danger. How can 
we contemplate such irresponsibility? Doesn't public safety count?
  How about funding for our Nation's schools? Two and a half years ago 
the President promised to leave no child behind. The No Child Left 
Behind Act authorized $20.5 billion in fiscal year 2005 for title I, 
the Federal program designed to help disadvantaged students in 
kindergarten through high school, those students who are most at risk 
of being left behind. A continuing resolution would freeze title I 
funding at just $12.3 billion. That would leave behind 2.7 million 
students who would not receive the title I services that were promised 
to them in the No Child Left Behind Act.
  A continuing resolution would also freeze funding for special 
education. Two months ago, the Senate voted overwhelmingly by a vote of 
96 to 1 to authorize a $2.3 billion increase for the Individuals With 
Disabilities Education Act--better known, perhaps, as IDEA--in fiscal 
year 2005, and fully fund the law within 7 years. A CR would put the 
lie to that pledge.
  As candidate for President in 2000, President Bush said:

       College is every parent's dream for their children. It's 
     the path to achievement. We should make this path open to 

  But, my dear friends, under the Bush administration, the cost of 
tuition has gone up by 26 percent, making it harder and harder for low- 
and middle-income students to pursue that dream.

  The Pell grant: A maximum Pell grant now covers only 34 percent of 
the average annual cost of college compared to 72 percent in 1976. 
Under a continuing resolution, there would be no increase in the 
maximum Pell grant now set at $4,050. There would be no increases for 
the College Work-Study Program or for other campus-based aid programs. 
So much for dreams, so much for promises, so much for empty talk.
  For the construction and restoration of our Nation's highways and 
bridges, a long-term continuing resolution would stifle the flow of 
billions of new dollars going to our States to improve safety 
conditions, minimize congestion, and create badly needed jobs.
  Just this past February, more than three-quarters of the Senate, 76 
Senators, approved a surface transportation bill that called for an 
overall commitment of highway funds for fiscal year 2005 of $37.9 
billion. Under a long-term continuing resolution, highway funding would 
be $4.25 billion less than that amount, a $4.25 billion shortfall. That 
difference represents more than 200,000 jobs across America, jobs that 
are desperately needed all across our States. But the Senate is in 
gridlock, much like the gridlock on our Nation's highways.
  Our Nation's military is serving gallantly in Iraq and Afghanistan, 
but under a continuing resolution the Veterans Health Administration, 
unbelievably, would get drastically reduced health care services for 
our fighting men and women. Approximately 237,000 veterans would not be 
able to receive care, and veterans outpatient clinics would schedule 
2.6 million fewer appointments. The waiting list for veterans seeking 
medical care would grow to over 230,000. What a way to treat our brave 
men and women. Shabby and shameful are the two words that come to mind.
  Al-Qaida operatives are in the United States preparing for another 

[[Page S8530]]

attack. The FBI must mobilize to find those terrorists before they 
attack us. But a full-year continuing resolution would force the FBI to 
freeze all hiring in fiscal year 2005. That would result in the FBI 
losing 500 special agents and negating the proposed increase of 428 
special agents. Nor would the FBI be able to fund any of the new 
initiatives proposed in the fiscal year 2005 budget request, including 
resources for the new office of intelligence counterterrorism 
investigations, counterintelligence, and fighting cyber crime.
  Another casualty of a full-year continuing resolution would be 
programs to combat HIV/AIDS, particularly in eastern Europe and Asia 
where the epidemic is spreading out of control. Only one in five people 
worldwide have access to HIV/AIDS prevention programs. Yet a continuing 
resolution would reduce funding for those programs by almost half a 
billion. That means there would be hundreds of thousands of new 
infections of the deadly virus--infections that could have been 
prevented, lives that could have been saved.
  The list goes on and on and, like Tennyson's book, goes on. Members 
of this Congress have a duty and a responsibility to the American 
people. They do not want us to approve massive omnibus spending bills 
that no one has bothered to read. They do not want us to pass mindless 
continuing resolutions that put the Government on automatic pilot and 
their safety on the line. They do not want us to cash our own paychecks 
without doing the work we were sent here to do.
  We are paid to debate legislation. We are paid to make careful 
choices on behalf of the people. The elections are coming, and if we 
are not going to do our work, then we should not claim the title of 
Senator. Just like Donald Trump, come November, the American people 
might decide to send us a very straightforward message: You're fired.
  Last week, the Republican leadership jammed into the defense 
conference report a provision ``deeming'' the level of spending for 
fiscal year 2005 at the level in the budget resolution conference 
report. It seems now we are ``deeming'' our way through budget debates. 
``Deeming''--this provision was not contained in the Senate or House 
version of the Defense bill. It was not debated here on the Senate 
floor. Yet this innocuous-sounding ``deeming'' provision will have far-
reaching consequences. That provision will result in appropriations 
bills that inadequately fund homeland security, education, veterans, 
transportation, and other programs to meet domestic needs. And the 
consequences are not just on paper. The American public is being 
cheated year after year by the steady erosion of money available to 
fund the public's priorities. They are being ``deemed'' down the river.
  This year, even while the directors of Homeland Security, the FBI, 
and the CIA are warning us of al-Qaida in our midst, we still are 
unaccountably and stubbornly sitting on the Homeland Security 
appropriations bill as if in total defiance of the dangers to our 
country and to the people's safety.
  None of this is the fault of our able Appropriations Committee 
chairman, Senator Ted Stevens. Early on, I encouraged Chairman Stevens 
to move 13 freestanding, fiscally responsible appropriations bills 
through the committee and on to the Senate floor. Senator Stevens 
instructed his 13 subcommittee chairmen to produce balanced and 
bipartisan bills; however, the Senate Republican leadership has refused 
to free up floor time for the appropriations bills.
  I will not be a party to such chicanery, and I implore the leadership 
of this body to stop the games and stop the politics. And I ask the 
majority leadership to set aside the pending business and proceed to 
the consideration of Calendar Order No. 588, H.R. 4567, the fiscal year 
2005 Homeland Security appropriations bill.
  Madam President, I yield the floor.
  Mrs. FEINSTEIN. Madam President, I echo the comments of Senator Byrd, 
the ranking member of the Appropriations Committee. While I do not have 
the perspective of his years of service in the Senate and on the 
Appropriations Committee, I share his concern about the breakdown we 
are seeing in this year's appropriations process.
  There are only 2 days left before the Senate leaves for an extended 
August recess. Yet the Appropriations Committee has reported out only 4 
of the 13 appropriations bills we must pass this year. The Senate has 
passed only one Appropriations bill--the Defense Appropriations bill. 
This is a dereliction of our primary duty in the Senate, funding the 
functions of Government.
  The blame for this situation does not go, in my view, to the 
Appropriations Committee. In the limited work the committee has done 
this year, it has operated in an efficient, bipartisan manner. But we 
all know that the committee has been hampered by the failure to enact a 
budget resolution.
  A budget is a clear articulation of priorities. We are having these 
problems because of a failure to prioritize, or because of skewed 
priorities. As we all know, the Congressional Budget Office is 
projecting a $477 billion deficit in fiscal year 2004.
  But some in the Congress continue to believe that more tax cuts 
should be the priority in this Congress. And they refuse to subject 
these tax cuts to the discipline of pay-as-you-go rules, which would 
require offsetting revenue increases, or spending cuts.
  They insist that we can balance the books by ``controlling'' 
nondefense, nonhomeland security, discretionary spending. Yet, no one 
has shown any inclination to significantly cut discretionary spending. 
Just the opposite. As Bill Young, the chairman of the House 
Appropriations Committee notes:

       No one should expect significant deficit reduction as a 
     result of austere non-defense discretionary spending limits. 
     The numbers simply do not add up.

  The notion of balancing the budget, while further reducing revenue, 
is simply wrong-headed. Or, as Chairman Young succinctly puts it, ``the 
numbers simply do not add up.''
  The Senate is scheduled for 19 legislative days after August. It does 
not appear that there is much hope for completing our appropriations 
work in that time. Indications in the media from the chairman and from 
the Republican leadership are that we will be faced with moving an 
omnibus appropriations bill when we return, possibly with some bills 
held over for a lameduck session of Congress. That is a terrible way to 
do business, and I sincerely hope it does not come to that.
  In the remaining 2 days before we recess, I am hopeful that we can at 
least take up my subcommittee's bill, the military construction bill. 
The subcommittee chairman, Senator Hutchison, and I have worked well 
together to craft a good bill with the support of Senators Stevens and 
Byrd. I believe that it deserves the support of the full Senate.
  And when the Senate reconvenes, in September, I hope that we on the 
Appropriations Committee will work efficiently, and on a bipartisan 
basis, to report freestanding bills to the Senate.
  Mr. BYRD. Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mrs. Dole). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. CORNYN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. Cornyn pertaining to the submission of S. Res. 
413 are printed in today's Record under ``Submitted Resolutions.'')
  The PRESIDING OFFICER. The Senator from Michigan.
  (Mr. CORNYN assumed the Chair.)
  Ms. STABENOW. Mr. President, I rise today to express deep 
disappointment about what is taking place on the Senate floor in the 
cloture vote scheduled for tomorrow. For the past 3\1/2\ years, Senator 
Levin and I have been urging the Bush administration to work with us to 
develop a bipartisan solution regarding the Michigan nominees to the 
Sixth Circuit Court. We have met on several occasions with Judge 
Gonzales, the current White House counsel, and other White House staff, 
but the White House has rejected all of our efforts at a compromise. We 
also had numerous meetings with Chairman Hatch and testified before the 
Senate Judiciary Committee several times on the need for a bipartisan 
  Chairman Hatch had expressed a willingness to work with us and to 
work with Senator Leahy on a bipartisan solution to this impasse, but 
it seems these efforts have been abandoned by Republican leadership in

[[Page S8531]]

favor of scoring political points before the party conventions.
  I still believe the best way to end this impasse is to forge a 
compromise. I hope the Bush administration and the Republican 
leadership will not continue down this road of what appears to be 
politically motivated and partisan cloture votes instead of working 
with us to develop a fair solution. A ``nay'' vote on cloture will 
preserve potential negotiations toward the bipartisan compromise we 
have been seeking. A ``yea'' vote will destroy these efforts and, 
unfortunately, be a vote for preconvention politics.
  Let me start by saying a few words about Judge Saad's nomination. 
Judge Saad is before us now. After listening to people in Michigan who 
have shared serious concerns with both Senator Levin and I, and having 
had an opportunity to review the FBI background materials, I have to 
say that I have serious concerns about Judge Saad's temperament and 
appropriateness for serving on this important bench. While I cannot go 
into specifics, I urge my colleagues to review the Judiciary 
Committee's FBI background materials for themselves.
  Judge Saad's lack of fitness for this appointment is also evidenced 
in the record he has put together as it relates to his work on the 
Michigan Court of Appeals. Most troubling, perhaps, are his decisions 
and reversals in cases involving the application of the law in civil 
rights cases--particularly in sexual harassment cases.
  His decisions also demonstrate hostility to the rights of 
whistleblowers. We know in this day and age, as we have learned through 
those who were courageous and came forward in the Enron and Halliburton 
cases, and others where employees have come forward, how important it 
is to be able to protect the rights of employees who see that something 
is wrong and they step forward. They are what we call whistleblowers.
  His decisions also have been hostile to the rights of people who are 
injured. For example, in Coleman v. State, Judge Saad joined in 
deciding against the plaintiff in a sexual harassment case, which was 
later reversed by the Michigan Supreme Court. Coleman, a State prison 
employee, was subjected to comments by her supervisor about her 
allegedly provocative dress and to daily inspections of her clothing, 
after she was the victim of an attempted assault and rape by an armed 
prison inmate. She was the one who was questioned, as too often we hear 
as it relates to women who are told it was their fault, because of the 
way they dress, and that is why they were assaulted. The Michigan 
Supreme Court reversed the decision, holding that there was sufficient 
evidence for the victim to go to trial.
  In Haberl v. Rose, Judge Saad dissented from the court of appeals' 
reinstatement of a jury verdict for the plaintiff who was injured by a 
Government worker who was doing Government work but driving her own 
  In the complicated case, the majority found that Michigan's sovereign 
immunity statute was not applicable, since a more specific civil 
liability statute said that car owners are not immune from liability. 
Car owners have liability in these kinds of cases.
  The dissenting Judge Saad stated that the sovereign immunity statute 
applied but the civil liability statute did not and, thus, the injured 
plaintiff could not recover.
  Judge Saad was harshly criticized for his dissent by the majority of 
the judges, who essentially called him a judicial activist:

       Indeed, it is the dissent that urges ``rewriting'' the 
     statutes in question and advocates overstepping the bounds of 
     proper judicial authority.

  Based on these concerns, I do not believe Judge Saad has the 
necessary judicial temperament to serve a lifetime appointment--a 
lifetime appointment--on the Sixth Circuit Court of Appeals.
  Mr. President, I wish to speak more broadly now about the process of 
bringing the Sixth Circuit nominees to the floor of the Senate. Senator 
Levin has spoken eloquently about the history of the Sixth Circuit 
nominees prior to my serving in the Senate. He has explained how two 
extremely well-qualified women--Judge Helene White and Kathleen McCree 
Lewis--failed to get a hearing before the Judiciary Committee for more 
than 4 years and 1\1/2\ years, respectively, during the previous 

  In fact, if she had been confirmed, Kathleen McCree Lewis would have 
been the first African-American woman on the Sixth Circuit Court of 
  Senator Levin and I are not alone in the view we hold that what 
occurred with respect to these nominees was fundamentally unfair.
  On more than one occasion, Judge Gonzales, the current White House 
counsel, has acknowledged that it was wrong for the Republican-led 
Senate to delay action on judicial nominees for partisan reasons, at 
one point even calling the treatment of some nominees during the 
Clinton administration ``inexcusable.''
  Senator Levin and I have repeatedly proposed to settle this 
longstanding conflict by appointing a bipartisan commission to make 
recommendations to the White House on judicial nominations.
  Our proposal would be based on the commission that is set up and 
working just across Lake Michigan in Wisconsin. The State of Wisconsin 
commission has produced bipartisan nominees for both district and 
circuit courts since its inception under the Carter administration.
  In fact, just recently, the Senate confirmed Judge Diane Sykes for a 
vacancy on the Seventh Circuit Court of Appeals. Judge Sykes, a Bush 
administration nominee, was recommended by the bipartisan Wisconsin 
commission and had the support of both of her Democratic home State 
  This process works. The Wisconsin commission includes representatives 
from the Wisconsin Bar Association, the deans of the State's law 
schools, as well as members appointed by both Republicans and 
Democrats. They only recommend qualified candidates who have the 
support of the majority of the commission. The President then looks to 
the recommendations of the commission when making his nominations.
  The Wisconsin commission's recommendations have always been followed 
by the President, regardless of political party. Again, this system has 
  This type of commission preserves the constitutional prerogatives of 
both the President and the Senate. It allows the President to pick one 
of the recommended nominees and protects the Senate's advise and 
consent role.
  Wisconsin is not the only State where this type of bipartisan 
commission works. In a similar form, it has worked in several other 
States, including Washington, California, and Vermont.
  Unfortunately, the White House continues to reject this proposal from 
Michigan, despite having agreed to similar commissions in other States 
with other Democratic Senators.
  Senator Levin and I are interested in finding a real bipartisan 
solution to this problem. We have stated on numerous occasions that we 
are willing to accept the commission's recommended nominees, even if 
they do not include Helene White and Kathleen Lewis, or any other 
person we would choose if it were up to us.
  Instead of divisive cloture votes, let's look to the future and 
restore civility to this process. It is time to do that with the Sixth 
  I hope we can still accomplish this and that the Bush administration 
and Chairman Hatch will work with us to develop a fair compromise to 
this longstanding problem.
  Let me take a moment to reiterate this is not about being unwilling 
to fill vacancies. As other colleagues have indicated, we have, in 
fact, confirmed 198 judicial nominees of this President, and I have 
voted for the overwhelming majority of those nominees. This is more 
judicial nominees than were confirmed for President Reagan in all 4 
years of his first term, more nominees than were confirmed for first 
President Bush during his 4-year Presidency, and for President Clinton 
in all 4 years of his second term. Mr. President, 100 judges were 
confirmed in the 17 months of the Democratic Senate majority.
  So under Democratic control, we confirmed 100 judges, and we were 
only in the majority for 17 months of the last almost 4 years. Now, 98 
more judges have been confirmed in the 25 months of Republican 
leadership. In other words, the Democrats were in the majority less 
time and confirmed more

[[Page S8532]]

judges for this President during the last 3\1/2\ years. So this is not 
about being unwilling to support filling judgeships, but it is about a 
very specific concern about what has been happening in Michigan and the 
lack of willingness of the administration to work with both Senators to 
fulfill our equal responsibilities of being able to pick the best 
people to serve our great State for a lifetime appointment.
  These are not Cabinet appointments of this President. They are 
lifetime appointments. The reason the Framers of the Constitution 
divided the responsibility--half with the President and half with the 
Senate, as we know--is because this is a third branch of Government 
with lifetime appointments, and it is very important there be the 
maximum amount of input, balance, and thoughtfulness brought to this 
  Unfortunately, regarding the Sixth Circuit, until we have a fair 
solution, I believe I have no other option than to oppose this cloture 
vote and to urge my colleagues to do the same.
  I thank the Chair. I yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. HARKIN. Parliamentary inquiry, Mr. President. What is the 
business before the Senate?
  The PRESIDING OFFICER. The nomination of Henry Saad to the Sixth 
Circuit Court of Appeals is the pending business.
  Mr. HARKIN. I thank the Chair.

               United States-Morocco Free-Trade Agreement

  Mr. HARKIN. Mr. President, I wish to take a few minutes of the 
Senate's time to discuss the reasons behind my decision to vote against 
the Morocco free-trade agreement implementing legislation which the 
Senate passed earlier today. I want to make very clear that my vote was 
not in any way against a free-trade agreement with Morocco. My vote, as 
was my vote against the Chilean free-trade agreement, was a protest 
against the continued determination by this administration to undermine 
and to do away with provisions that address labor issues, especially 
the worst forms of child labor, that we had contained in the Jordan 
free-trade agreement and relevant provisions in the Generalized System 
of Preferences.
  In fact, I welcome this affirmation of the strong economic and 
political relationship that exists between the United States and the 
Kingdom of Morocco which can be strengthened by this agreement. I 
recognize this legislation is almost certain to pass the House this 
week very easily, and the United States-Morocco Free-Trade Agreement 
will go into effect next January.
  The Kingdom of Morocco is a politically moderate Muslim nation that 
has been a long-time friend of the United States, a friendship that has 
been demonstrated most recently with their support in the aftermath of 
the tragedy of September 11, 2001.
  Morocco has been a valuable partner in fighting the global war on 
terror, and so it is appropriate for the U.S. Government to reciprocate 
that support with a bilateral free-trade agreement so long as it leads 
to expanded economic opportunities for both partners.
  Once in place, this agreement will generate significant economic 
benefits to both Morocco and the United States, and with Morocco's 
strategic position on the continent of Africa and easy access into 
Europe through the Strait of Gibraltar, it could serve as a gateway to 
even more markets.
  This bilateral free-trade agreement could also serve as the 
foundation for a far wider free-trade agreement with the entire region 
of the Middle East and northern Africa.
  With respect to agriculture, this free-trade agreement provides 
modest but clear opportunities to a wide range of U.S. commodities.
  The opportunities provided in the free-trade agreement in 
nonagricultural goods and services will be substantial as well, and it 
reflects the determination of the Government of Morocco to modernize 
their economy to the benefit of the people of Morocco.
  So count me as a friend of Morocco. Morocco has been a strong ally of 
the United States. It is a moderate nation. I have had the privilege of 
visiting Morocco on at least two occasions, maybe more, and I have a 
great deal of respect and admiration for the Moroccan people. 
Nonetheless, I decided to vote against it because I intend to call 
attention to the decision of U.S. negotiators to retreat from the 
provisions under the Generalized System of Preferences that requires 
the U.S. Government to monitor our trading partners on their progress 
in meeting international standards on the use of child labor, and these 
provisions in the GSP also provide leverage to encourage those 
countries to continue to make progress by permitting sanctions to be 
imposed against those who backtrack.
  The Bush administration has taken a weak stand toward child labor in 
this latest trade agreement. In 2000, I, along with then-Senator Helms 
of North Carolina, authored an amendment that unanimously passed the 
Senate that extended GSP benefits to countries that took steps to 
implement ILO Convention 182 on the worst forms of child labor, and it 
mandated that the President report on the progress of these countries. 
If the President determined that countries were not taking steps to 
implement the ILO Conventions, benefits would be withheld.
  The trade agreement that we passed with Chile earlier, and with 
Morocco, takes a step backward. As I said at the time, I first proposed 
we have a free-trade agreement with Chile in 1993, 11 years ago. So I 
had mixed emotions when I had to vote against the free-trade agreement 
with Chile because Chile's Government is making great progress. But 
this administration sought to undermine what we had achieved in the 
Jordanian free-trade agreement and in the Generalized System of 
  Morocco does have problems with child labor. Although not employed in 
regular manufacturing, child labor is commonly used in cottage 
industries, such as rug making, and many Moroccan middle-class 
households use children as domestic servants. The Government of Morocco 
did pass new labor laws last month which included raising the minimum 
working age from 12 to 15 and reducing the workweek from 48 to 44 
hours, but a recent U.S. Department of Labor report indicates that 
enforcement of existing laws is severely constrained.
  So while Morocco has been a good friend, while they are trying to 
make progress, I think our trade laws ought to bolster that progress in 
doing away with the worst forms of child labor.
  I take into account these considerations when I determine whether I 
will support a given trade agreement, as well as the economic gains 
that may be generated.
  As in the case of Chile, my concern about the lack of direct 
protection against the use of child labor was the overriding factor, so 
I voted no on the free-trade agreement with Morocco. Again, as I say, I 
do not want this to be misinterpreted in any way as any lack of support 
for our mutual friendship and the continued development of relations 
between the United States and Morocco.


  Mr. HARKIN. I was watching on the monitor when Senator Byrd was 
recently on the floor talking about the lack of considering 
appropriations bills. In 2 days, we are going to adjourn for recess. 
What do we have to show for it? By this point, the Senate should have 
passed most, if not all, of the 13 appropriations bills, but this year 
under the Republican leadership we have only passed one, the Defense 
bill. We have not even debated the 12 others, much less put them to a 
  Why is that? Is it because we are so busy in the Senate that we 
cannot debate these? Hardly. We spent days talking about judges who 
stand no chance of being confirmed; days on an amendment to ban gay 
unions that everyone knew would not pass, could not even get a majority 
vote, let alone 67 votes needed for a constitutional amendment. We 
spent weeks on a class action bill because Republican leadership did 
not want to consider amendments on which they thought they might lose.
  Meanwhile, the Senate leadership has taken no action on increasing 
the minimum wage or extending unemployment benefits that could really 
make a difference for hard-working Americans.
  The highway bill, which would create thousands of jobs, is now almost 
a year overdue, hung up by a veto threat of the White House. The bill 
to authorize Corps of Engineers projects that are important to farmers 
in my State was passed by the committee a month ago. There is no sign 
of any consideration in the Senate.

[[Page S8533]]

  According to the Senate leadership, there is no time to take up 
appropriations bills that provide funding for critically important 
Government services. Passing the appropriations bills ought to be one 
of our top priorities. These bills pay for everything from roads and 
veterans health to homeland security and education. But here it is, 
July 21, with only 21 legislative days remaining in the fiscal year, 
and we have passed one appropriations bill.
  That is all.
  As the ranking Democrat on the Labor, Health, Human Services and 
Education Appropriations Committee, I find this very troubling. It is 
not the committee chairman's fault. I know Senator Stevens is anxious 
to pass these bills. The same goes for the chairman of the Labor, 
Health, Human Services and Education Appropriations Subcommittee, 
Senator Specter. Our staffs have worked together closely on a bill. We 
are ready to mark it up on a moment's notice, but the White House and 
the Republican leadership in the Senate seem to have no interest in 
moving any appropriations bill other than Defense.
  The reason is simple when one thinks about it. If these 
appropriations bills get debated on the Senate floor, everyone will see 
what the Republican Party's priorities are. It will be very clear. The 
Republican Party is out of touch with middle-class and low-income 
Americans. Education is a case in point. Two and a half years after 
President Bush signed the No Child Left Behind Act, it is obvious he 
has no intention of providing the funding to make it work. President 
Bush's budget for next year shortchanges the No Child Left Behind Act 
by a whooping $9.4 billion.
  No wonder we hear from school boards, teachers, and principals all 
over our States complaining about the No Child Left Behind Act. It is 
an unfunded Government mandate, the biggest of all, telling our local 
schools what they have to do, and yet we do not provide the funding 
that was promised by the President, $9.4 billion less than what he 
promised, and it is shortchanging our schools.

  Look at title I in education. That is the Federal program that 
specifically serves disadvantaged children who are at the most risk of 
falling behind and being left behind. The President's budget 
shortchanges this program by more than $7 billion. Now we are up to $16 
billion in two cases of education.
  It is the same story with kids with disabilities. The President's 
budget provides less than half of the level Congress committed to 
paying when the Individuals with Disabilities Education Act was passed 
in 1975. Meanwhile, Mr. Bush continues to oppose the bipartisan 
legislation Senator Hagel and I have offered to fully fund this law.
  On higher education, the President offers virtually no help to low- 
and middle-income students who cannot afford to go to college. Under 
President Bush's budget, the maximum Pell grant award would be frozen 
for the third straight year while college tuitions continue to rise 
through the roof.
  The level of Pell grants in the President's budget next year will be 
lower than it was in 2002. One wonders why so many students cannot 
afford to go to college now or why they are borrowing more money and 
graduating with these big debts. Well, maybe that is the 
administration's goal: Get these kids to borrow more money from the 
banks, pay these big interest rates, pay it back, rather than making 
Pell grants, which they should be providing.
  Meanwhile, President Bush's budget eliminates funding entirely for 
programs like school counselors, arts and education, gifted and 
talented programs, and dropout prevention, all zeroed out in the 
President's education budget.
  The administration says there is no money to do this, no money to 
make good on the pledges made only 2 years ago.
  Well, I am sorry if I strongly disagree. Bear in mind that in this 
same budget with all of these cuts to education, the President calls 
for another $1 trillion in tax cuts.
  It seems to me if there is room for $1 trillion in tax cuts, surely 
there is room for $9.4 billion to fund the No Child Left Behind 
education bill. That would be less than 1 percent of the proposed new 
tax cuts.
  Time and again we hear this administration say, well, education 
reform is not about money. It is true, education reform is not only 
about money, but let's be real: If we are going to modernize school 
buildings, it costs money. If we are going to buy up-to-date textbooks 
and school technology, guess what. It costs money. If we are going to 
reduce class sizes, it costs money. If, under the No Child Left Behind 
Act, we want highly qualified teachers in the subjects in which they 
teach, guess what. It costs money. And if we want to ensure all kids 
with disabilities are learning at the proficient level as required by 
the new law, guess what. It costs money. If we want to ensure all young 
people, regardless of income, have a shot at going to college, guess 
what. It costs money. Unfortunately, money is something we do not get 
very much of in the President's education budget.
  If they want a tax break for the wealthy, they get $1 trillion. If we 
want to fund education, forget it in the President's budget.
  We Democrats tried to increase funding for education during the 
debate on the budget resolution in March. We offered amendments on the 
No Child Left Behind Act, on afterschool centers and Pell grants, but 
the Republican majority rebuffed us every time. Now the Republican 
leadership in the Senate will not even give us a chance to debate an 
education appropriations bill and offer amendments on the floor of the 
Senate. They will not even give us a chance to do that.

  A couple of years ago when the President signed the No Child Left 
Behind bill, he seemed to think that education was an important Federal 
responsibility--Federal, not local. The President signed the No Child 
Left Behind Act, a Federal mandate to local schools. If the President 
thought 2 years ago that education was an important Federal 
responsibility, why is the President so reluctant to have us take up an 
appropriations bill that would fund this law?
  I believe I know why. The Republicans have backed themselves into a 
corner. They are doling out so many tax cuts for the rich that they do 
not have any money left to fund our Nation's schools. They know if they 
offer an education bill with the limited amount of money they are 
willing to spend on students, there is going to be a huge outcry across 
the country. The American people would see what the President really 
stands for. They would see, in black and white, that this 
administration has no real interest in leaving no child behind.
  Four years ago we were looking at over $5 trillion in surpluses over 
10 years, with the Federal Reserve talking about the great economic 
effects of completely paying off the Federal debt by 2009. That was 4 
years ago.
  Four years later, now, this year, we are facing a record deficit of 
over $400 billion just this year. There are many reasons for that 
turnaround, but the biggest by far is the tax cuts. About half of the 
tax cuts we have passed here go to people averaging an income of over 
$1 million a year. Let me repeat that: Over one-half of those tax cuts 
that we have passed here go to people averaging an income of over $1 
million a year.
  This administration's misguided tax policies are undermining our 
Nation's fiscal strength; they are weakening our economy, jeopardizing 
Social Security, and reducing our ability to provide for the needs of 
our children and our Nation's education. It is no wonder that the 
Senate Republican leadership wants to avoid the issue of education 
funding. They do not want to bring the education funding bill out on 
the floor for open debate and amendments. They just want to sweep it 
under the rug and hope that no one notices.
  The Republican Party controls the Senate schedule, so they have that 
power. But I urge them to reconsider. Let's mark up the bill in 
subcommittee, to the full committee, and bring it to the floor.
  As I said, Senator Specter has done his job. My staff worked with his 
staff. We have a bill that is ready to go. Bring it out here. Let's 
have a good debate about how much we want to fund education. Give the 
public a chance to weigh in and see an open debate. Let's have 
amendments. Let's vote on them. I thought that was the way the process 
was supposed to work.
  Maybe my friends on the other side of the aisle are right. Maybe 

[[Page S8534]]

really do care more about tax cuts for the rich than about funding 
education. I don't think that is so, but there is only one way to find 
out. That is to bring the education appropriations bill to the floor in 
open debate and let Senators on both sides of the aisle offer their 
amendments. Let's vote on those amendments, and let's see how the 
elected Representatives of the people of this country feel about 
funding education after those debates and after those votes. As I said, 
it seems to me this is the way our democratic system is supposed to 
  Again, I urge the Republican leadership: Bring out our appropriations 
bills. I focus on education because I happen to be the ranking member 
on the appropriations subcommittee dealing with education, health, and 
labor. There are so many more, as I mentioned, such as the highway bill 
and homeland security, that we need to get through on the Senate floor. 
There are 21 days left, and we have passed only one appropriations 
  The Senate is not doing its business. It is time we do.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. DURBIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. Mr. President, I ask unanimous consent to be recognized 
to speak as if in morning business for 15 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. Thank you, Mr. President.

                             Darfur, Sudan

  Mr. DURBIN. Mr. President, 1,000 people died there yesterday, 1,000 
people will die there today, 1,000 more will die tomorrow and the day 
after that, and then the next day for as long as we can possibly 
imagine. I am speaking of Darfur, Sudan. In that region of the world 
this year, 300,000 people may be dead; 1\1/2\ million people in Sudan 
are homeless. Villages have been decimated, women have been 
systematically raped, crops have been destroyed, and wells have been 
poisoned with human corpses. This is genocide. Let us not mince words. 
It demands action.
  The 1948 Convention on the Prevention and Punishment of the Crime of 
Genocide requires signatories, including the United States of America, 
to prevent and punish acts that are ``committed with the intent to 
destroy, in whole or in part, a national, ethical, racial or religious 
group.'' That is exactly what is taking place in Sudan today.
  We in the United States have to join with civilized nations around 
the world to stop the genocide in Darfur because we have failed 
sometimes before. We failed knowingly time and time again in the 20th 
century. Ten years ago we failed the people of Rwanda.
  Samantha Power is the author of a book which I have read, a book 
which haunts and inspires me. It is a book entitled ``A Problem From 
Hell: America and the Age of Genocide.'' She wrote, ``The United States 
had never in its history intervened to stop genocide and had in fact 
rarely even made a point of condemning it as it occurred.''
  That is a terrible condemnation on our Nation, and it is one that I 
think calls us all to action in Sudan.
  This is not a partisan issue. I want to salute my colleagues on the 
Democratic side, Senator Jon Corzine of New Jersey, and on the 
Republican side Senator Sam Brownback of Kansas and Senator Mike DeWine 
of Ohio. They have spoken out on this floor time and time again about 
the genocide in Sudan. They remember, as I remember, what happened in 
Rwanda--what happened while I was a Member of Congress, and while I did 
not pay as much attention as I should have.
  Ten years ago, between 800,000 and a million people were butchered in 
Rwanda. The killings took place with terrifying efficiency. The weapons 
of mass destruction were simple: the machete, the club, the torch. 
Those with enough money in Rwanda were sometimes able to pay their 
killers to shoot them rather than hack them to death with a machete. 
These killings were crudely carried out and executed, but they were 
carefully orchestrated. They were designed to wipe out an ethnic group, 
the Rwandan Tutsis, from the face of the Earth, along with any other 
moderate Hutus who dared to question the ruling ideology.
  Bill Clinton, a man I count as a friend, was President of the United 
States when this occurred. He read a series of articles about the 
killings in Rwanda. He turned to his National Security Adviser Sandy 
Berger and asked, Is what they are saying true? How did this happen? 
Bill Clinton came to realize after the genocide in Rwanda that the 
United States had made a historic, tragic mistake of not speaking up, 
of not moving with other nations to stop what happened in Rwanda. He 
visited that country and apologized on behalf of our country and the 
rest of the world for ignoring, for standing idly by, while a million 
people died. That happened in Rwanda because the United States allowed 
it to happen.
  I am dwelling on Rwanda today, but the crisis is in Sudan. Why? 
Because years from now I don't want those of us serving in Congress to 
be asked about Sudan, How did this happen? We know how it is happening, 
and we know it continues to happen even as we speak.
  Ten years ago, seven Tutsi pastors trapped in a hospital that was no 
sanctuary wrote to the world pleading for intervention and assistance. 
Here are their words: ``We wish to inform you that we have heard that 
tomorrow we will be killed with our families.'' There was no 
intervention. There was no help. And the next day, these Christian 
pastors and their families were killed, and hundreds of others with 
  We failed to act in Rwanda. We cannot fail to act in Darfur, Sudan. 
For months, in western Sudan, the janjaweed, Arab militias--death 
squads--have waged war on the ethnic African villagers. They have 
killed thousands outright. They have engaged in massive, systematic 
rape and told their victims that they hoped they would produce ``light-
skinned'' babies. They have made 1.5 million people homeless, some 
internally displaced and some forced into Chad and other neighboring 
nations. The Sudanese Government, a government which should be 
protecting its people, has conspired in this mass murder and 
contributed to it by deliberately shutting out international 
humanitarian efforts to reach the refugees. Starvation, disease, and 
exposure to the elements are also the weapons of genocide.
  My family grew up in Springfield, IL in a typical American community 
and typical American neighborhood. Next door were our closest friends, 
the Mays family. There was a young woman, a young girl when I first met 
her, who grew up with my kids. Her name is Robin Mays. She is an 
amazing young woman who succeeded in so many different facets of life 
and decided to enlist in the Air Force right out of college. She was in 
the Air Force for 7 years as an officer in charge of logistics. When 
she came out of the Air Force, she came to me and said, I would like to 
do something that uses my skills that might help people. I put her in 
contact with the World Food Program. She went to Ethiopia, and she was 
involved in dealing with the refugee problems and feeding thousands. 
She came back to the United States and went to work for USIA. A few 
months ago, she was sent to the Sudan, and she is there. She is working 
in Sudan now with the victims of genocide, with the refugees. The other 
day she sent an e-mail to her family. She shared it with me. She was so 
excited because she heard there were actually people in the United 
States talking about what was happening in Sudan. It was encouraging to 
her that the rest of the world even knew what was happening in Sudan. 
She didn't hold any great hope that we would run to her aid and find 
some relief for these poor victims, but she was so encouraged that we 
even knew and that we even cared.
  What a sad commentary on a great nation like the United States and 
many other great nations around the world, that that is the best we can 
do to acknowledge the problem, to express our concern.
  An estimated 180,000 Sudanese have fled to Chad, one of the poorest 
countries in the world. Hundreds of thousands more are displaced within 
Sudan, roaming around, trying to look for a safe place or something to 
feed their children. When you look at the images

[[Page S8535]]

of the mothers in the Darfur region, Sudanese mothers and their 
children with matchstick legs, covered with flies, dying, starving 
right before our eyes, we have to ask, are we doing what we should? Is 
the United States doing what it should?
  We have to take steps, and we have to take them now, to stop this 
mass slaughter. We start by calling it what it is--genocide--and by 
labeling it a genocide. It calls all who signed the treaty to action to 
prevent genocide, not just to care but to do something. The United 
States and the United Nations must both label this for what it is. 
Secretary of State Powell has stated that Sudan is ``moving toward a 
genocidal conclusion.'' That is short of calling it a genocide, but I 
give the Secretary of State credit. In many times gone by, when a 
genocide was occurring, we could not even bring ourselves at the 
official level to acknowledge it. Secretary of State Powell is doing 
that, and I salute him for it. Sudan has reached the stage of genocide, 
but that genocide has not reached its final conclusion. There is still 
time to save the lives of hundreds of thousands.
  On Friday of this week, many of us will leave this Chamber. We will 
be off to political conventions, campaigns, time with our families, 
vacations. The first part of September, we will return. Six weeks from 
now, 45 days from now, we will be back, but during that 45-day period 
of time, 40,000 or 50,000 innocent people will die in the Sudan. There 
is no vacation from genocide. There is certainly no vacation from the 
Sudan. I try to imagine, as I stand here with all the comforts of being 
a U.S. Senator in this great country, what it must be like to be a 
mother or a father in that country now watching your children starve to 
death, fearing systematic rape, torture, and killing, which have become 
so routine.
  We have to do something. We have to do it now. Congress should move 
to pass resolutions to let the world know we are prepared to move 
forward. Senator Brownback, a Republican from Kansas, and Senator 
Corzine, a Democrat from New Jersey, are pushing forward a resolution 
that we should not leave this city for any length until it is enacted. 
But we need not just words. We need to continue to send assistance, as 
we have, and we deserve credit as a nation for caring and reaching out, 
but we need to do more--food, water, medicine, but also security for 
foreign aid workers to get in and to allow the Sudanese refugees to 
return home.
  The United Nations Security Council has failed as well. It has been 
stymied by several nations which don't want to hold the Sudanese 
Government responsible for what is happening. We need to move 
immediately. I know our new U.N. ambassador, Jack Danforth, a man whom 
I greatly respect, a man of conscience, understands this, as we do. He 
needs to push those members of the Security Council to get the United 
Nations to act on Darfur and the Sudan immediately. We need to 
intervene. We need to see whether, in the 21th century, international 
institutions such as the United Nations can succeed where others have 

  The United States also has rich intelligence resources and 
capabilities that track militia activity. We have 1,800 troops on 
Dijibouti who could join an international humanitarian mission. 
Ultimately, it is the African Union that must supply the personnel to 
enforce security, but we can help.
  President Bush--and I disagree with him on so many things, but I have 
to give him credit where it is due--helped in Liberia with a handful of 
marines prepared to act. They brought stability to a situation that 
seemed out of control. We need that same leadership again from this 
White House, from this Department of Defense, from the State 
Department, and from this Congress.
  Security is a prerequisite in this country of Sudan for helicopter 
and truck transport which is going to carry supplies to those who are 
literally starving to death. The Sudanese Government has to rein in 
these militias. It cannot continue to look the other way. It recently 
allowed some relief supplies to be offloaded, but the Government has 
helped unleash the genocide in the Sudan, helped arm and direct the 
Janjaweed. They cannot be trusted to see to their disarmament without 
international supervision. We have voted to extend millions in 
emergency assistance to Sudan, but that assistance will never reach 
them unless we create conditions on the ground that allow its 
  Mine is only one voice in a Chamber of 100 Senators, in a nation of 
millions of people. I don't know that what I have to say in the Senate 
will have an impact on anyone, but I could not and many of my 
colleagues could not countenance leaving Washington in good conscience 
for an August vacation recess and acting like the carnage in Sudan is 
not occurring. It is genocide. Those in the civilized world must stand 
up and not only condemn it but take action to bring it to an end as 
quickly as possible.
  I yield the floor.
  The PRESIDING OFFICER (Ms. Collins). The Senator from Minnesota.
  Mr. COLEMAN. Madam President, I rise to speak on a matter different 
than what my friend and colleague from Illinois has spoken about, but 
before I do, I associate myself with his comments.
  I stand with him and others on both sides of the aisle in asking the 
question, Are we doing all that we should be doing in the Sudan? 
Genocide is occurring. We can have debate about the legal definition of 
genocide, but for the folks who are experiencing the pain and the 
suffering, the torture, they are not interested in legal debate.
  I hope we heed the call of my friend from Illinois, that before we 
leave, before we go home to be with our families and do the things we 
do in our State and throughout this country, that we at a minimum speak 
out, that at a minimum the voice of this Congress be heard, and that we 
then move forward on the path, beyond speaking out, that will provide 
some action, that will provide a level of safety, security, and 
comfort, the basic things that need to be done in the Sudan.
  As I listened, I want my friend from Illinois to know that his words 
have had impact. I hope they echo far beyond these halls and that we do 
what should be done, that we make a statement in this Congress, that 
statement be turned into action, and that action has some impact.
  (The remarks of Mr. Coleman pertaining to the introduction of S. 2715 
are located in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  Mr. COLEMAN. I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. FRIST. Madam President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. FRIST. Madam President, last night I filed a cloture motion on 
the Sixth Circuit judicial nomination of Henry Saad. That vote will 
occur tomorrow morning. Two additional Sixth Circuit nominations are on 
the Executive Calendar, ready for consideration. I am prepared to ask 
unanimous consent for time agreements and up-or-down votes on these 
nominations; however, I understand that there will be objection from 
the other side.
  I ask the Democrat leadership if it is true they would not agree to a 
time agreement on these Sixth Circuit nominations?
  Mr. REID. The majority leader is correct.