Senate Floor Statements by NeilYounger


									      UNITED STATES                           OF   AMERICA

Congressional Record
                      SECOND SESSION

              VOLUME 140—PART 7

                   MAY 2, 1994 TO MAY 16, 1994
                      (PAGES 8883 TO 10402)

10378                                     CONGRESSIONAL RECORD—SENATE                                          May 16, 1994
 velop the Viceroy Gold property for al- tant that we recognize the patent disaster, after paying no royalty. The
 most 20 years. They went all over, try- issue. I hope, again, in the reform we American taxpayers are left to pick up
 ing to find an investor. They finally have that if a patent is issued, there the tab.
 found somebody in Vancouver who was will be a reversionary issue.                       Mr. REID. I will respond to the Sen-
 willing to come in and before there was       If the Senator has a problem, as he ator from Arkansas that I hope one of
 a single ounce of gold taken out of that indicated he has, that having a fair the things the conference comes back
 property, that man spent $100 million. market value is improper for a land, with is a means of taking care of that.
    Now, there was no guarantee that that there should be some way of deter-             Mr. BUMPERS. We are going to. I
 they would have an ability to pay back mining what the subsurface rights are, promise the Senator we are going to.
 the $100 million. The fact of the matter that is really hard to do. J am not sure       Mr. REID. I also will say, if you look
 is, it is true there is no industry in the we can do it. I would be happy to meet at those 59 claims, 56 or 57 of them—
 world more than the American mining with the Senator. I am not in the con- leaving 1 or 2 of modern mines—all the
 industry that represents the free enter- ference. The Senator is in the con- rest of mines that are very, very old.
 prise system. That is all we want to be ference. I am sure that he will do his That does not mean the mining indus-
 able to go forward on, with a fixed set best to make sure that this is fair.         try should not be involved in cleaning
 of rules that are meaningful and some-        In responding to the Senator's ques- those up. I think they should be, and I
 thing that the mining industry can tion, I ask the Senator this: I hope that think they want to be. I think that is
 still proceed on.                          you being—you are one person from appropriate.
    I would close by saying—I repeat—I being chairman of that full committee.            Mr. BUMPERS. The Mineral Policy
 hope the Interior Department does not I hope that with your experience being Center says there are 557,000 abandoned
 try to make up for its shortcomings in chairman of the Small Business Com- hardrock mining sites to be cleaned up
 grazing, in logging, and in water prob- mittee and someone who has a tremen- in this country, and it is going to cost
 lems with what they are trying to do dous amount of integrity and respect somewhere between $30 and $70 billion.
 on mining. Because the fact of the mat- in this body and around the country, Think about that. And today we just
 ter is that mining is extremely impor- that during the time that conference is gave away an additional 11 billion dol-
 tant and the profit margins are very held, I hope you will call upon your ex- lars' worth of gold while the taxpayers
 slim no matter how many times the perience and come up with something are being asked to pick up the tab for
 distinguished Senator from Arkansas that is fair and reasonable to the peo- $30 to $70 billion just to clean up the
 talks about ripoffs and travesties. The ple of this country and, of course, the mine sites of the past.
 fact of the matter is that the profits people of the Western United States.            I yield the floor, Mr. President.
 are very marginal and what will hap-         Mr. BUMPERS. I appreciate the Sen-        I suggest the absence of a quorum.
 pen, as has happened, is these compa- ator's statement. My arguments are               The PRESIDING OFFICER. The
 nies will be forced to go offshore.        not punitive. I am not trying to punish clerk will call the roll.
    There is gold in other places. It is the mining companies, and I am not             The assistant legislative clerk pro-
 easier to mine it here in the United trying to punish the people who work ceeded to call the roll.
 States because there is a market for it. for the mining companies. Certainly           Mr. SPECTER. Mr. President, I ask
 But, remember, this is one of the few the Senators who stand on the floor unanimous consent that the order for
 industries that helps us with a favor- year after year and defend these prac- the quorum call be rescinded.
 able balance of trade.                     tices are good friends of mine. I under-    The PRESIDING OFFICER (Mr.
    I again appreciate very much my stand exactly what is going on. Maybe BUMPERS). Without objection, it is so
 friend from Arkansas allowing me to we will be able to come up with some- ordered.
leave the floor                             thing to reform the law this year.          Mr. SPECTER. Mr. President, I ask
    Mr. BUMPERS. Will the Senator stay        Mr. REID. Let me close by saying, I unanimous consent that I may proceed
and answer one question before he said this publicly in the last 5 years, for up to 10 minutes as if in morning
leaves? This land we are talking about, and I say it this year. If the conference business.
Barrick did not even file a claim for committee comes up with a reasonable              The PRESIDING OFFICER. Without
that land. Somebody else did.               reform, the companies that do business objection, it is so ordered.
   You know, people go out there and in Nevada have asked me if I will sup-             Mr. SPECTER. I thank the Chair.
they put up stakes and they just lay port reasonable reforms.
claim to it.                                  So I look forward to the conference
   Do you know what Barrick did? They committee coming back with some-                  SUPREME COURT NOMINATIONS
found this site. The claimant said, thing that is fair and reasonable and is            Mr. SPECTER. Mr. President, I have
"Yeah, go explore, see what you can a real compromise. Hopefully, we do sought recognition to comment briefly
find." They came back. And they said, not have to have this battle year after on the nomination, by President Clin-
"You have a lot of gold here." They year.                                            ton, of Judge Stephen Breyer to the
paid him $62 million for his claim.           Mr. BUMPERS. I know the Senator Supreme Court of the United States.
What do the American people get out from Nevada does not take instruction,              At first appearance, Judge Breyer
of that? How many jobs do they get out and I hope that the Senator—and I looks to be qualified for appointment
of that $62 million they paid a guy who know he would—hopes that we come to the Court. But I have been some-
did nothing but put up four stakes?         out with something that is good for the what concerned as I have seen so many
   Mr. REID. I will be happy to respond. American people and not just the min- of our colleagues state at this early
We have done something about that. ing companies.                                    stage that they intend to vote for him,
We have solved that problem so people         Mr. REID. Absolutely.                  in advance of the nomination hearings
cannot go out and file miles and miles        Mr. BUMPERS. Mr. President, the and deliberation by the Senate and ul-
of claims anymore. In fact, prior to our Senator mentioned reclamation a timately the vote of the Senate.
changing the law with the holding fee, while ago, and I do not want to prolong          Judge Breyer's nomination was sub-
we had in Nevada over a million min- this. Do my colleagues realize that of mitted, announced by President Clin-
ing claims. That now, at last report, is the 1,200 sites on the Superfund list ton at a news conference Friday at 6
down to about 300,000—something like that 59 of the sites on the Superfund o'clock, some 72 hours ago. There is a
that. So it is not as if we have not done list are directly related to hardrock great deal yet to be done concerning
anything here.                              mining? We are spending millions of the nomination. The Senate will con-
   The Senator has not responded—and dollars a year right now of the tax- sider him carefully under our advice
I am sure he will when I leave—but the payers' money to clean up site after and consent function, put him under a
reversionary interest we had in the leg- site after site where they walked off microscope and make a determination
islation last year, I think it is impor- and left an unmitigated environmental as to his fitness for the Supreme Court.
May 16, 1994                             CONGRESSIONAL RECORD—SENATE                                                   10379
    The position of Justice of the Su j       Similarly, there had been a rule in ef- retary of the Interior. This brings the
  preme Court is enormously important fect for some 18 years—from, again, question to my mind as to why there
  in our society, with so many decisions 1971 until 1989—on counseling of women are not more prospective nominees
  being handed down by a 5 to 4 vote under provisions of planned parent- that we hear about.
 which have impact on the lives of vir- hood. There a regulation with obvious           The Senate, as it is well known, has
  tually every American and sometimes congressional approval, unchanged in both the obligation and responsibility
 worldwide. With a 5 to 4 decision, that some 18 years, was reversed in a Su- to consent to nominations, but also
 fifth vote by a Supreme Court Justice preme Court decision in Rust versus under the advice and consent function
 has greater power than most acts of Sullivan.                                        we have a rule to advise. And J have
 the President of the United States.          So there are those strong indica- been giving thought, in discussion with
 And, unlike the President, who is elect- tors—and many, many others could be some of my colleagues, to the possibil-
 ed for 4 years or perhaps 8 years, a Jus- cited—where the Court acts as a super ity of the Senate creating a pool of pos-
 tice on the Supreme Court may sit for legislature, which is not quite the same sible nominees for consideration by the
 two or three decades, and has enor- as someone running for the Senate or President.
 mous power over a very long period of House of Representatives or President            Obviously, it is the President's deci-
 time.                                     to answer questions about public pol- sion, and he can take them or leave
    A concern which I have is that when icy.                                          them. But one possible scenario—and I
 there is virtually a coronation in ad-      But it seems to me that there is a have not fixed on any precise course—
 vance, the nominees are apt to answer substantial appropriate leeway for Sen- would be to canvas the bar associations
 relatively few questions. Since I was ators on the Judiciary Committee to of the 50 States, write to the chief jus-
 elected to the Senate in 1980, I have ask questions on a variety of impor- tices of the 50 State supreme courts,
 had occasion to serve on the Judiciary tant subjects. We have the question of the chief judges of the circuit courts of
 Committee for eight confirmation pro- the death penalty, where more than 70 appeal, the chief judges of the U.S. dis-
 ceedings, and have noted a very defi* percent of the American people favor trict courts, and perhaps to law schools
 nite pattern that nominees to the Su- the death penalty, where more than 70 to find a list of those who might be
 preme Court answer only as many Senators in this body—again more uniquely well qualified to be on the Su-
 questions as they really have to an- than 70 percent—have supported the preme Court by virtue of judicial expe-
 swer. And when there is general ap- death penalty. Yet there are restrictive rience, but not necessarily exclusively
 proval given, in advance, and the nomi- decisions coming from the Supreme judicial experience.
 nee runs only risks by answering ques- Court, and sometimes a change of
 tions, there is an inclination not to an- heart as to whether the death penalty        We have on the Supreme Court at the
 swer very many questions.                                                            present time, of the nine Justices,
                                           is barred by the cruel and unusual pun- eight of them came from other courts.
    I am not suggesting, Mr. President, ishment provision of the Constitution. Justice O'Connor came from the Ari-
 that in the confirmation hearings we
 ought to ask a nominee how he or she freedom of religion, freedom of speech, zona Superior Court, the
                                             There are important questions on                                   Chief Justice
                                                                                                  came from
 will decide a cutting edge question and on Executive powers. I have tried, Rehnquist The other seven Justice De-
 which is likely to come before the and will try again, to get an answer to partment. Federal courts ofJustices all
 Court, but really to get an idea of judi- the question delineating the Presi- came from                            appeals.
 cial philosophy and approach to prob- dent's power to deploy U.S. military             And there is a sense that we might
lems. I submit, Mr. President, that this forces, a subject of tremendous impor- well have some greater diversity* Such
is especially important in an era where tance, especially considering what is a pool might lead to inquiries about
 the Court has become in many ways a                                                  scholarly writing, trial practice, appel^
super legislature, and really passes on now occurring in Haiti and what has late practice of the kind of consider-
questions of public policy, and fre- occurred in Somalia.                             ation which were given greater breadth
quently in apparent disagreement with        I have asked the question as to to the possibility of Presidential nomi-
congressional enactments, although whether the Korean war was a war. nations.
the Judges would disagree with that And I prejudged the question in a sense             In considering this matter, the situa-
statement.                                 by calling it a war. But that is not a tion of Learned Hand comes to mind, a
   But I would refer to just a couple of question which is going to come up in great jurist who was never considered
cases. One is the interpretation of the the precise context of Korea, but as yet for the Supreme Court. A historical
Civil Rights Act where the Supreme I have been unable to get an answer to event that about widely reported comes
                                                                                      to mind            Senator
Court of the United States, in 1971, jn that question because nominees are chairman of the Judiciary Borah, the
the Griggs case, handed down a unani- virtually assured confirmation by dec- conferring with President Committee,   Hoover in
mous opinion. This case was in effect laration of Senators in advance, and 1930 and President Hoover showing
reversed by the Supreme Court of the the nature and tenor of the nomination Senator Borah a list of 10 prospects and
United States, in a 5-to-4 decision, in proceedings that they are virtually cer- him saying, "I like number 10," who
1989 in Wards Cove as to the definition tain to be confirmed.
of employment under the Civil Rights         Mr. President, there is also a concern turned out to be Justice Cardoza, who
Act.                                       that I would like to express briefly, and had an extraordinary record on the ap-
   The Congress then had to go to work that relates to what appears to be a pellate court of the State of New York,
and pass an amendment to reinstate limited rule of prospective nominees to New York Court of Appeals. Also, the
the rule of Griggs which the Supreme the Supreme Court with the same Holmes, of Justice 20Oliver ofWendell
                                                                                               having had     years     experi-?
Court Of the United States had, in ef-     names which we heard about last year,
fect, overruled in Wards Cove, where       hearing about again this year. I do not ence on the Supreme Judicial Council
you had an interpretation by the Court say that in any criticism or in deroga- of Massachusetts. I think such provid-   a pool
                                                                                                really very advisable,
which had been in effect for 18 years, tion of the names which we heard, but might be very substantial diversity.
untouched by the Congress, really a it seems to me that there must be ing some
conclusive presumption that the Griggs many of the best of the brightest in             I personally was disappointed that
interpretation coincided with congres- America who would qualify for the Su- the President did not move forward
sional intent. Then the Supreme Court preme Court.                                    with the suggested name of Bruce Bab-
overrules that, not on Constitutional        This year we heard the name Judge bitt, the Secretary of the Interior.
grounds but on grounds of statutory in- Breyer, who was nominated, and came Bruce Babbitt would have brought di-
terpretation. And that Supreme Court very close to being submitted last year; versity, as he had experience as a Gov-
decision was changed, as I «ay, by the Judge Arnold of the 8th circuit, again ernor, a State attorney general, a Cabi-
congressional enactment of the Civil this year; we heard very much about net officer, and a Presidential can-
Rights Act of 1991.                        him last year; Bruce Babbitt, Sec- didate. When the President had pub-
10380                                    CONGRESSIONAL RECORD—SENATE                                                   May 16, 1994
licly disclosed his interest in having       of both his skills and his character. I WJAR-10 to replace a "weather girl," in the
our distinguished majority leader, Sen-      speak for many Rhode Islanders when I early 1960s.
ator MITCHELL, that would have been a        express our appreciation, and wish both           In the old days, maps of the United States
line of diversity, as was the suggestion     Art Lake and WJAR continued success. were painted on the wall and the weather
                                                                                             forecaster had to memorize the forecast or
of New York Gov. Mario Cuomo at                 Mr. President, I ask unanimous con- refer to material written on cards.
some time in the past. It seems to me        sent that an article from a recent edi-           Now, Lake uses a computer to develop the
that that kind of diversity would            tion of the Woonsocket, RI, Call enti- weather maps, and refers to a teleprompter
strengthen the Court.                        tled " A r t Lake: 50 Years of TV His- for the weather forecast.
  I believe, Mr. President, that the ac-     t o r y , " be printed in the CONGRESSIONAL       The maps are not painted on walls, but
tions of the U.S. Senate in examining        RECORD.                                         only broadcast on television screens for
                                                                                             viewers, while Lake points to a blank wall
Supreme Court nominees is one of our            There being no objection, the article behind him.
highest callings, and perhaps our high-      was ordered to be printed in the                  "When I first started, weather people
est calling. It is certainly true that the   RECORD, as follows:                             would greet you on the street with "why
Supreme Court of the United States is                ART LAKE: 50 YEARS OF TV HISTORY        don't you get it right?," said Lake.
the guardian of the U.S. Constitution                         (By Kristen Lans)                Now they call and say their daughter is
and, in a sense, the Senate has a con-                                                                married tomorrow and
                                                SMITHFIELD.—Spring will not be overly- gettingtent outside," he said. ask if she'll
                                                                                             need a
stitutional guardianship of the Su-          warm this year.                                   The veteran media figure remembers fall-
preme Court, because it is we who pass          Art Lake said so, with the confidence of ing asleep at a beach in South County one
on their qualifications.                     someone who has forecasted weather the summer, and opening his eyes to a circle of
  I urge my colleagues not to commit         past 30 years every winter, spring, summer people surrounding him. They knew he was a
in advance to Judge Breyer, or to any-       and fall for Rhode Island audiences.            television figure, but not what he did and
                                                But Lake's career with WJAR-Channel 10 wanted Lake to identify himself.
one, in order to leave the full range of     stretches further back in time than that,
                                             with 1994 marking the 50th year he has leaves the WJAR-Channel 10 studio a.m. and
questioning available so that we may                                                           Lake begins his workday at 3:45
                                                                                                                                   in Cran-
make an appropriate inquiry into             worked for the same station, first as a radio, ston at 12:30 p.m.
Judge Breyer, as we have made inquir-        then television, news announcer.                  The best days are those when you were
ies into other nominees, to do the best         "I am not overly happy to be this old, but "right" with your weather forecast the day
job, and see to it that we have the very     I loved being a part of the early days of tele- before and it continues, said Lake.
strongest Supreme Court that we can          vision," said Lake, who requested his age not "It's awful when you come in and a mas-
                                             be printed.                                     sive storm is breathing down your back," he
have and, hopefully, perhaps rethink            As a teenager from Braintree, Mass., Lake said.
some of our procedures to have as            began at WJAR as a radio announcer when it        Although Lake received offers in the past
much guarantee as possible that the          operated out of the Outlet Department store to relocate to a different station, doing so
Supreme Court of the United States           in downtown Providence.                         would not be feasible, he said, because it
will be occupied by the best and the            The department store went into the busi- would have entailed starting at the bottom
brightest.                                   ness to increase the sale of records, said salary and working up again and again.
                                             Lake, and the men's clothing department           In the early days, experience did not rate
  I yield the floor.                         was the only department which brought in salary, according to Lake, and his wife and
                                             more revenue each year than the broadcast- three boys remained in Smithfield.
                                             ing department.                                   Everything in the broadcasting industry
         MORNING BUSINESS                       In 1949, when the station expanded and has changed, he said, except the call letters
  Mr. PELL. Mr. President, I ask unan-       began broadcasting over television, Lake of the station WJAR, where he has worked
imous consent that there now be a pe-        stayed as one of 10 television news announc- half-a-century.
riod for morning business, with Sen-         ers.                                              Lake said he has not made any decisions
ators permitted to speak therein for up         "Art is like the station historian," said on retirement.
                                             Doug White, newscaster for WJAR-Channel           Although WJAR asked Lake to do a piece
to 3 minutes each.                           10. "He can talk just as comfortably about on his 50th anniversary with the station, the
  The PRESIDING OFFICER. Without             1954 as he can about 1994."                     forecaster has not accepted the offer yet, ac-
objection, it is so ordered.                    White has worked with Lake at the same cording to White.
                                             station for 16 years, although recently they      White said television audiences received
                                             cross paths infrequently because of conflict- one impression of television news programs
ART LAKE: HALF A CENTURY OF                  ing schedules.                                  from "The Mary Tyler Moore Show," whose
  RHODE ISLAND BROADCAST HIS-                   White said when he first began at WJAR he character Ted Knight displayed an arrogant
  TORY                                       was assigned to the noon newscast with Lake attitude.
                                             and found the weather forecaster prepared         "Art Lake couldn't be any further from
  Mr. PELL. Mr. President, I would           for the "curve balls" live television can en- that character," said White. "I suspect when
like to share with my colleagues the         tail.                                           he decides to retire he will slip out the back
news of a remarkable anniversary. Art           Lake got his start on television when it door after politely saying goodbye to every-
Lake this year celebrates 50 years of        was introduced to the households of Amer- one/'
news and weather reporting in the            ica.
broadcast industry, including about 45          In those days, he said, there were "weather
years in television.                         girls" who sang the weather forecast in IRRESPONSIBLE CONGRESS? HERE
                                             rhymes or drew the weather on a chart as                 IS TODAY'S BOXSCORE
  There is one more fact that makes          they described it.
this remarkable anniversary even more           Lake's career in weather grew from a            Mr. HELMS. Mr. President, anyone
extraordinary. In an industry noted for      hobby and not a college degree, because his even remotely familiar with the U.S.
the temporary nature of its jobs and         degree from Emerson College in Boston was Constitution knows that no President
the transience of its newscasters, Art       in radio broadcasting.                          can spend a dime of Federal tax money
Lake has remained with the same sta-            The week after Lake moved to Smithfield that has not first been authorized and
tion for all his years in broadcasting.      in 1954, Hurricane Carol followed and its ef- appropriated by Congress—both the
That station is Rhode Island's WJAR.         fects peaked his interest in weather.
                                                "I found out there was a lot more to know House of Representatives and the U.S.
  In an institution noted for the long       about weather than reading a box in the Senate.
service of some Members, we stand in         upper right corner of the newspaper," said         So when you hear a politician or an
awe of anyone who has put in so many         Lake. "I like to show people the movement editor or a commentator declare that
decades at one of the few jobs that          of the weather so people understand why it is "Reagan ran up the Federal debt" or
draws more daily criticism than poli-        happening."                                     that "Bush ran it up," bear in mind
tics. You see, Art Lake has worked 30           Lake would go to T.F. Green Airport in that it was, and is, the constitutional
of those 50 years as weatherman.             Warwick and study the weather charts for duty and responsibility of Congress to
                                             hours with National Weather Service work-
  The fact that he has not only sur-         ers.                                            control Federal spending. Congress has
vived but has become such a constant            He learned weather from .meteorologist failed miserably in that task for about
and reliable figure in our lives, is proof   John Ghiorse, when Ghiorse was hired by 5 years.
                           UNITED STATES                              OF   AMERICA

Congressional Hecord
                       PROCEEDINGS AND DEBATES OF THE 103d                 CONGRESS
                                            SECOND SESSION

                                 VOLUME 140—PART 11

                                     JUNE 29, 1994 TO JULY 13, 1994
                                           (PAGES 14949 TO 16510)


79-059 O—97 Vol. 140 (Pt. 11)1
July 11, 1994                            CONGRESSIONAL RECORD—SENATE                                               15829
   Mr. SPECTER addressed the Chair.        stitutes public policymaking by the fourth, fifth, and sixth. Again, he de-
   The PRESIDING OFFICER. The Sen- Supreme Court.                                  clined to answer.
ator from Pennsylvania [Mr. SPECTER],        In the United States today, the crime   Judge Souter, now Justice Souter,
is recognized.                             problem is of overwhelming impor- appeared before the Judiciary Commit-
                                           tance. That proposition needs no am- tee and was asked questions relating to
                                           plification or embellishment. The the critical constitutional questions of
THE NOMINATION OF JUDGE STE- death penalty is a very important de- the authority of Congress to declare
   PHEN BREYER TO BE AN ASSOCI- terrent to crime. More than 70 percent war contrasted with the President's au-
   ATE JUSTICE OF THE SUPREME of the American people favor the death thority as Commander in Chief, and I
   COURT                                   penalty. When the issue comes before asked whether the Korean conflict was
   Mr. SPECTER. Mr. President, I have this body, characteristically, 70-plus a war within the meaning of the Con-
sought recognition to comment briefly Senators vote in favor of it. But in case stitution, and Judge Souter declined to
on the nomination of Judge Stephen after case, there is engrafted by the Su- answer. The general rule is that a Sen-
Breyer for the Supreme Court of the preme Court new constitutional rules ator can ask any question he or she
United States. I am advised that we which are not found on the face of the chooses, and the nominee has the
will not have opening statements to- document, and are not derived from the standing to decline to answer any ques-
morrow, so I thought it worthwhile to Founding Fathers' intentions, but are tion, but the one line which is out of
make a few comments this evening on really matters of public policy.               bounds, perhaps, is to ask a question on
that subject.                                We have vital interests, vital con- a case which may come before the
   I have awaited a quorum call most of cerns on war powers. The Constitution Court.
the afternoon, and the Senate was vir- vests the sole authority in the Con-          The Korean conflict case could not
tually in continuous business. I under- gress of the United States to declare possibly come before the Court. In
stand the hour is late and I shall be rel- war. Yet, we see where there are con- order to get some idea as to the think-
atively brief, but I think these are im- flicts which amount to wars, and it is ing of Judge Souter on a very critical
portant remarks.                           very hard to get answers from the question that the Supreme Court of the
   In my view, the Senate has no duty nominees when their confirmation is United States may have to arbitrate
which is more important than the con- virtually assured on the appropriate between the Congress' authority to au-       de-
                                                                                               versus the President's
firmation of Supreme Court justices, meaning of the constitutional power to clare war Commander in Chief, that is
                                                                                   thority as
and that is true because with so many declare war or on any other question a question which this Senator thought
5 to 4 decisions, that fifth vote has put to nominees.
enormous impact on every man,                It has been apparent in the 14 years ought to be answered. But Judge
woman, and child in the United States that I have been present—and tomor- Souter did not think so.
and, veiy frequently, it has great im- row will mark the ninth Supreme               Last year, when Judge Ginsburg, now
pact on people around the world.           Court confirmation since my election Justice Ginsburg, appeared beforeSen-   the
   That fifth swing, deciding justice, for in 1980, that nominees for the Supreme Judiciary Committee, a number of
that case has much greater power than Court of the United States answer as ators commented on how few her about   questions
                                                                                        answered. When I asked
the President of the United States, many questions as they really feel she death penalty and whether she had
where there are many checks and bal- compelled to in order to be confirmed. any conscientious scruples against it,
ances on what the President does. The When the nomination or confirmation she in effect told me it was none of my
President serves for 4 years, or perhaps of a nominee is virtually assured, it is business and none of the Senate's busi-
8, but the Supreme Court justices serve very hard to get answers from the ness. The issue of whether a juror has
much longer—several decades, in nominees. When Judge Scalia, now Jus- conscientious scruples against the
many, many instances. So their con- tice Scalia, appeared before the Judici- death penalty is traditionally recog-
firmation is of great importance.          ary Committee, he would not answer nized as a very relevant question. In a
   When the Constitution was drafted, even basic questions as to whether the death penalty case, if the prospective
 the first article was devoted to the decision in Marbury versus Madison juror answers in the affirmative that
 Congress; the second article was de- was established constitutional law and he or she has conscientious scruples
voted to the executive branch, the not subject to challenge. When Justice against the imposition of the death
President; and the third article was de- Rehnquist,        now    Chief    Justice penalty, that is grounds for disqualify-
voted to the judiciary. Since Marbury Rehnquist, appeared before the Judici- ing the juror for cause, not a peremp-
versus Madison was decided by the Su- ary Committee, he would not respond tory challenge where the prosecutor
 preme Court of the United States in to questions as to whether the Con- and the defendant have substantial
 1803, the judiciary has been supreme. gress could take away jurisdiction of latitude on striking jurors without any
The judiciary has the final word, on a the Supreme Court on constitutional specific cause.
 constitutional issue, that is it, in the issues.                                    I make these references because they
 absence of a constitutional amend-          A staff member on the Judiciary are illustrative of the difficulties of
 ment, which is very hard to enact. Committee acquainted me with an ar- getting answers from nominees in a
 Even on nonconstitutional issues, the ticle written by William Rehnquist in context where so many Senators com-
 word of the Supreme Court is virtually the Harvard Law Record in 1958, long ment in advance that the nominee is
 the last word, although Congress may, before William Rehnquist became a Su- fine and the media reports, and accu-
 but frequently does not, act.             preme Court justice, in which he wrote rately reports I think, that the con-
   The power of the Supreme Court has that nominees should answer questions firmation of Judge Breyer is a foregone
 become even more important in an era put to them by the Senate. When con- conclusion, which very dramatically
 of much judicial legislation, far beyond fronted with that article, he answered limits the scope of the meaningfulness
 the traditional concept of the judicial a few questions. He finally would an- of the Judiciary Committee in the first
 role of interpreting the law. In many swer a question saying that the Con- instance and the Senate in the final in-
 ways, the Supreme Court of the United gress could not take away the jurisdic- stance performing this constitutional
 States has become a super legislature. tion of the Supreme Court on first duty of confirmation, advice and con-
 This is of enormous importance in an amendment issues. And then he was sent, and this is the consent function
 era in which many cases come before asked about the fourth amendment and in the face of a virtual coronation in
 the court where new concepts of con- declined to answer; the fifth amend- advance.
 stitutional law are engrafted that have ment, declined to answer; the sixth         We have seen instances, Mr. Presi-
 not been provided for either by the amendment, declined to answer. Then dent, and I shall mention only two in-
 Pounding Fathers in intent or on the he was asked why he had answers to stances briefly, of the super-legislature
 face of the document. This really con- the first amendment and none on the in action.
15830                                  CONGRESSIONAL RECORD—SENATE                                           July 22,1994
  The Civil Rights Act was enacted in      memo contrasting the pedigree of the         MEASURE HELD AT THE DESK-
1964. Seven years later in the Griggs      Supreme Court justices, including the            SENATE RESOLUTION 240
case the issue of business necessity on    current nominee, Judge Breyer, made I        Mr. THURMOND. Mr. President, I
employment practices was decided by a      thought a very telling analogy to the      send a resolution to the desk and ask
unanimous Court with the opinion           silk-stocking nominees who were char-      unanimous consent that the resolution
written by Chief Justice Burger. That      acteristically approved by the Amer-       be held at the desk until the close of
decision stood for 18 years, ratified by   ican Bar Association and sit on the        business tomorrow.
congressional acquiescence without         Federal courts with Mr. Alexander Wil-       The PRESIDING OFFICER. Without
any action made to amend the Civil         liams who may have woolen socks, as        objection, it is so ordered.
Rights Act of 1964. Then in 1989 the       Charity Wilson, my staffer, put it,
Wards Cove decision came down, and         "woolen socks with a hole in them."
the Supreme Court of the United              I think there ought to be emphasis       COMMENDING PARTICIPATION OF
States in what really constituted          by this body, Mr. President, and that is     U.S. SOCCER TEAM IN 1994
super-legislative action changed the       why I take a moment or two now and           WORLD CUP SOCCER TOUR-
definition of business necessity requir-   will take a few moments during the           NAMENT
ing congressional action with the Civil    confirmation hearings to comment
Rights Act of 1991 to reinstate the law    about the context of the Court where         Mr. THURMOND. Mr. President, I
to what Congress had intended.             we do not have Justices who have had       rise today to submit a Senate resolu-
  The Court interpreted that on public     experience as trial lawyers, as assist-    tion commending the participation of
policy grounds. The Supreme Court in       ant district attorneys, or as public de-   the U.S. soccer team in the 1994 World
a matter of superlegislation changed       fenders, people who have litigated ex-     Cup soccer tournament.
the law.                                   tensively or have extensive pro bono         I ask unanimous consent that Sen-
  The family planning provisions were      work with a real feel for what goes on     ator GRASSLEY, Senator HELMS, Sen-
enacted in the 1970 legislation, and a     in America.                                ator WOFFORD, Senator LAUTENBERG,
regulation interpreting that law was         It is true that the President has sole   Senator DECONCINI, Senator JOHNSTON,
issued in 1971 by the Federal agency       discretion in his nominating function,     and Senator MATHEWS be added as co-
that had helped draft the law the pre-     but it was equally true that the Senate    sponsors.
vious year making it clear that doctors    has sole discretion in deciding what the     The PRESIDING OFFICER. Without
could counsel women on planned par-        confirmation standards should be.          objection, it is so ordered.
enthood on the abortion option. Then       There are learned scholars, among            The Chair in his capacity as a Sen-
in 1988 the regulation was changed and     them Justice Ginsburg, who com-            ator from Montana asks unanimous
the Supreme Court of the United            mented about the equal standing of the     consent that he also be added as co-
States in the Rust decision decided        Senate in making evaluations of the        sponsor.
that that change was appropriate be-       qualifications of judicial nominees.         Without objection, it is so ordered.
cause there had been a change in public      I raise these questions, Mr. Presi-        Mr. THURMOND. Mr. President, cur-
opinion notwithstanding the fact that      dent, not thinking that they are likely    rently, the United States is hosting the
by 17 years of acquiescence the Con-       to have any telling effect on the pro-     world's most celebrated sports event,
gress had in effect given its imprima-     ceedings as to Judge Breyer tomorrow       the 1994 World Cup. This honor was
tur that the earlier regulation was the    but to try to at least have one Senator    awarded on July 4, 1988, by the Federa-
appropriate interpretation of the law.     express a view as to the importance of     tion Internationale de Football Asso-
  There is one other matter I want to      the position of the Supreme Court of       ciation, otherwise known as FIFA,
comment on very briefly, Mr. Presi-        the United States where that fifth vote    which is headquartered in Zurich,
dent, and that is the trend on the Su-     has more power than the President and      Switzerland. This is the first time in
preme Court to consist virtually exclu-    the practice of coronating in advance      the 64-year history of the World Cup
sively of ex-judges. Eight of the cur-     so that the nomination proceedings         that America has been the host of this
rent nine Supreme Court Justices came      themselves do not have the impact or       prestigious event.
from appellate courts, seven from U.S.     the meaning they ought to have by vir-       I believe this tournament will stimu-
courts of appeal and one from a State      tue of ruling out so many of the ques-     late interest in organized soccer in the
appellate court, and Judge Breyer          tions which nominees ought to answer.      United States. It is estimated that soc-
comes right in the same mold from a        When I say ought to answer it is their     cer ranks third in team sport popu-
U.S. court of appeals.                     decision and it is a balance, and the      larity for youngsters under the age of
  Many of us were disappointed and         eight nomination proceedings from 1981     18, preceded only by basketball and
said so publicly, and I publicly ex-       through 1993 show I think a pattern        volleyball.
pressed my disappointment, in not hav-     that the nominees answered as many           My home State of South Carolina has
ing Secretary of the Interior Babbitt      questions that they feel they have to      benefited from the popularity of this
nominated to provide some diversity to     answer.                                    sport. According to Fortune magazine,
the court—someone who had been a             I would hope in the future that we       Umbro, a soccer apparel manufacturer,
Governor, a Secretary of the Interior,     would have some greater diversity on       is owned by Stone Manufacturing Co.
and a Presidential candidate, to give      the Court. I would hope in the future      of Greenville, SC. Umbro's global sales
some broader diversity of experience.      that there will be greater diversity on    exceed $300 million and are growing at
  The need for diversity in experience     nominations. I would hope in the fu-       an estimated rate of 70 percent per
was brought to the fore again recently     ture that Senators refrain from giving     year. Also, according to Fortune maga-
when the Judiciary Committee held a        approval in advance or coronating          zine, the 1994 World Cup final series is
confirmation hearing for Mr. Alexander     nominees in advance so that we can do      expected to create approximately $4
Williams, who was nominated for the        our duty, that we can really find out      billion in revenues from all sources.
U.S. district court for the District of    about these nominees and improve the         Twenty-four teams from around the
Maryland. He was opposed by the            caliber of the Supreme Court of the        world have gathered in Boston, Chi-
American Bar Association, which found      United States, as our fuunction is a       cago, Washington, Los Angeles, De-
him not qualified. This opposition         very, very important one because the       troit, Dallas, New York, San Francisco,
raises the issue as to whether you have    justices of that court do have the last    and Orlando to participate in this 52-
to be from a prominent law school and      word on the meaning of the Constitu-       game tournament. The final game will
from a prominent law firm, a silk          tion.                                      be played on July 17 at the Rose Bowl
stocking lawyer, in effect, in order to      I thank the Chair and yield the floor.   in Pasadena, CA. Thousands of foreign
become a Federal judge. And Charity          The PRESIDING OFFICER. The Sen-          visitors have come to America to sup-
Wilson, my staffer who wrote me a          ator from South Carolina.                  port their teams and experience the
July 12, 1994                              CONGRESSIONAL RECORD—SENATE                                                           15863
be offered in the House have been re-                       CLOTURE MOTION                       The PRESIDING OFFICER, The
jected, while in the Senate S. 55 has re-      We, the undersigned Senators, in accord- clerk will call the roll.
mained almost defiantly unchanged ance with the provisions of Rule XXII of the                   The bill clerk proceeded to call the
even in the face of obvious, and now Standing Rules of the Senate, hereby move roll.
fatal, opposition.                           to bring to a close the debate on the motion        Mr. McCAIN. Mr. President, I ask
   Perhaps the biggest resolution since to proceed to Calendar #162, S. 55, a Act to unanimous consent that the order for
                                             amend the National Labor Relations             to
the Mackay decision in 1938 has been prevent discrimination based on participa- the quorum call be rescinded.
 the shrinking of our world. We were an tion in labor disputes:                                  The PRESIDING OFFICER. Without
insular power, one of many, and we               Edward Kennedy, Don Riegle, John objection, it is so ordered.
emerged from World War II as the                    Glenn, Paul Simon, Barbara Boxer,            The Senator from Arizona is recog-
greatest economic power on the planet.              Daniel K. Akaka, Carl Levin, Bob Gra- nized.
This was not surprising given that our              ham, Russell D, Feingold, Howard M.
country was spared from damage dur-                 Metzenbaum, Paul Wellstone, Clai-
ing the war. Nor is it surprising that              borne Pell, Ben Nighthorse Campbell,         NOMINATION OF JUDGE BREYER
our pre-eminence has eroded in the dec-             Carol Moseley-Braun, Jay Rockefeller,        Mr. McCAIN. Mr. President, I intend
                                                    Pat Leahy.                                 to make a very brief statement.
ades that followed the war as other
countries have rebuilt and retooled.                                                             Mr. President, this morning the Sen-
   In 1938, we could afford to consider                                                        ate Judiciary Committee began hold-
labor-management relations in isola-               CALL OF THE ROLL WAIVED                     ing hearings on the nomination of
 tion. In 1994, we no longer have that         The PRESIDING OFFICER. By unan- Judge Stephen Breyer to be Associate
luxury.                                      imous consent, the quorum call has Justice on the Supreme Court. I am
   The Dunlop Commission can and been waived.                                                  hopeful that those proceedings will
should look into all of these issues.                                                          shed light on the record of Judge
Certainly I would support it in doing                                                          Breyer in the effort to fill this ex-
so. With the preliminary report re-                                VOTE                        tremely important Supreme Court po-
cently issued by the Commission, it            The PRESIDING OFFICER. The sition with the best possible person.
has begun this process. However, I view question is, Is it the sense of the Sen-                 The position of Associate Justice on
it as putting the cart before the horse ate that debate on the motion to pro- our country's highest court is one that
in the extreme to create a commission ceed to the consideration of S. 55, the requires the complete public trust. The
 to study the need for reform of our sys- Workplace Fairness Act, shall be American people must have full faith
 tem of labor laws, but to exclude the brought to a close? The yeas and nays and confidence in the Judiciary. I hope
 issue of striker replacements from con- are mandatory under the rule.                         that Judge Breyer will be able to fur-
 sideration by that commission. But            The clerk will call the role.                   ther the public's trust in these institu-
 that is precisely what was done in this       The legislative clerk called the roll.          tions.
 instance in the false belief that S. 55       The yeas and nays resulted—yeas 53,               Mr. President, there have been very
could be passed and signed into law nays 47, as follows:                                       serious charges raised regarding the
without the need for further study or                  [Rollcall Vote No. 188 Leg.]            appropriate use of taxpayer dollars for
debate.                                                          YEAS—53                       the construction of the Boston Court-
   Passage of the present legislation Akaka                   Feinstein       Mikulski
                                                                                               house. According to published reports,
will change the face of labor relations Baucus                Ford            Mitchell         Judge Breyer personally played an ac-
in this country, Clearly that is the in- Biden                Glenn           Moseley-Braun    tive role in the design and site selec-
 tent, but is it in the best interest of the Bingaman
                                                                                               tion processes for this facility.
country? That is the question. I have Bradley                Hatfield         Pell               Mr. President, the cost of this ex*
yet to hear sufficiently compelling an- Breaux                Heflin          Reid             travagant courthouse continues to sky-
 swers to prompt me to vote for this Byrd    Bryan           Inouye           Riegle           rocket. The courthouse was originally
                                                              Johnston        Robb             estimated to cost $163 million. How-
 measure. Maybe those answers will be Campbell                Kennedy         Rockefeller
 forthcoming in the next session of Con- Conrad               Kerrey          Sarbanes         ever, due to cost overruns and other
gress when we may have more sub- D'Amato                      Kerry           Sasser           costs the taxpayers will now be paying
stantive hearings. Or maybe, as it Daschle   DeConcini
                                                                                               $218 million for this Taj Mahal.
should have in the first place, the Dun- Dodd                 Leahy           Specter            Additionally, architectural fees for
lop Commission will look into the issue Dorgan                Levin           Wellstone        the design of this shrine—originally
as part of its comprehensive rec- Exon                        Lieberman       Wofford          budgeted at $8,633,000—have now ex-
 ommendations for labor law reform. Feingold                  Metzenbaum                       ceeded $11 million. And unfortunately,
Only those who control the agenda can                            NAYS—47                       we have no idea when the cost overruns
decide whether these items will be Bennett                    Faircloth       McCain           will end.
added.                                       Bond             Gorton          McConnell          These reports also have listed the fol-
   Accordingly, while I remain open to Boren Brown
                                                                              Nickles          lowing proposed expenditures: A six
 the possibility of passing meaningful Bumpers                Gregg           Nunn             story atrium; 63 private bathrooms; 37
and wise legislation in this area, S. 55 Burns                Hatch           Packwood         different law libraries; 33 private kitch-
is not such legislation. Thus, I will Chafee Coats
                                                                                               ens; custom-designed private stair-
again vote no on that bill today.            Cochran          Hutchison       Roth             cases; $450,000 for a boat dock; $789,000
               POSITION ON VOTE              Cohen            Jeffords        Simpson          for original artwork; and $1.5 million
   Mr. WELLSTONE. Mr. President, I Coverdell                  Kassebaum       Smith            for a floating marina with custom-
                                             Craig            Kempthorne      Stevens          made park benches, garbage cans, and
wanted to indicate for the record that Danforth               Lott            Thurmond
I was necessarily absent for rollcall Dole                    Lugar           Wallop           street lights, and a 2.6-acre park.
vote 187. Had I been present I would Domenici                 Mack            Warner             I am concerned about how the tax-
                                             Durenberger      Mathews                          payers' money is being spent. Those re-
have voted "nay."
                                               The PRESIDING OFFICER. On this sponsible for public expenditures must
                                             vote, the yeas are 53, the nays are 47, be held accountable for their actions.
            CLOTURE MOTION                   three-fifths of the Senators duly cho- Those who spend that money in a fash-
   The PRESIDING OFFICER. The hour sen and sworn not having voted in the ion that is not appropriate or that is
 of 2:30 p.m. having arrived, under the affirmative, the motion is not agreed called into question must be forthcom-
previous order the clerk will report the to.                                                   ing in explaining their actions. Judge
motion to invoke cloture.                       Mr. MITCHELL. Mr. President, I sug- Breyer was the individual—or client—
   The legislative clerk read as follows: gest the absence of a quorum.                        responsible for this project. That is
15864                                           CONGRESSIONAL RECORD—SENATE                                                 July 12, 1994
why we must now ask these questions               at no cost. For example, the City of Phoenix      tween labor and management as pro-
of Mr. Breyer.                                    recently donated land to the federal govern-      vided for under current law. I am op-
  Yesterday, I wrote to Judge Breyer              ment for the proposed new Phoenix Court-          posed to this bill because, in my view,
asking him specific questions regard-             house. Noting the fact that the federal debt      it is bad for economic policy and
                                                  is looming near $4 trillion, what was the ra-     growth. Above all, I am opposed to this
ing the Boston Courthouse. Answering              tionale for choosing a site that cost $34 mil-
these questions in a forthcoming man-             lion?                                             bill because of the severe impact it
ner is crucial so that the Senate may               5. According to documents supplied to me        could impose on the smallest members
consider this serious matter in the ad-           by the General Services Administration, one       of the American business community
vise-and-consent process.                         of the risks of not proceeding with the Bos-      and their employees, such as those
   Mr. President, I do not in any way             ton Courthouse is that GSA has already            comprising 99 percent of South Dako-
raise this issue to impugn Judge                  spent $34 million for the site and $13 million    ta's businesses.
Breyer. I am not a member of the Judi-            for design. I am very concerned that $47 mil-       As the ranking member of the Senate
ciary Committee and therefore cannot              lion has already been spent on this project in
                                                  a manner which makes it virtually impos-          Small Business Committee, I work
ask questions of him directly during              sible to build a courthouse on a site which       with entrepreneurs every day. I have
his confirmation hearing. But I do be-            would result in savings to the taxpayer. GSA      heard their concerns and know their
lieve that the many questions sur-                documents reflect the fact that the court, re-    limits. Everything I have learned from
rounding the Boston Courthouse and                ferred to in their documents as the "client,"     business men and women tells me they
Judge Breyer's role in designing that             is strongly pushing for the project to move       cannot handle the day-to-day uncer-
building and selecting this site must be          forward as planned. Please comment on your        tainty this legislative proposal would
fully and publicly aired. Anything less           role in this matter noting specifically what      impose of them.
would be wrong and an abdication of               purchases or expenditures you may have per-
                                                  sonally approved or with which you were in-         Under current law, employees have
our responsibilities.                             volved.                                           the ultimate collective bargaining
   Good judgment and discretion are in-             6. According to published reports, you have     tool—the right to strike. In turn, em-
dispensable assets to a Supreme Court             personally interviewed architects and played      ployers have the right to use perma-
Justice. We have an obligation to ex-             an active role in the design process for the      nent replacements during strikes as
amine Judge Breyer's record and to de-            Boston Courthouse. Accordingly, please com-       long as they do not violate the unfair
termine if he has exercised good judg-            ment on the need for and prudency of the fol-     labor practices laws administered by
ment not only in his judicial decisions,          lowing proposed expenditures which have           the National Labor Relations Board.
but in his administrative duties.                 been noted by the media: A six story atrium;
                                                  63 private bathrooms; 37 different law librar-    This has remained a well-established
   Mr. President, I ask unanimous con-            ies; 33 private kitchens; custom designed pri-    principle of labor law since 1938, when
sent that the letter I sent to Judge              vate staircase; $450,000 for a boat dock;         the U.S. Supreme Court recognized
Breyer be printed in the RECORD. I am             $789,000 for original artwork; and $1.5 million   management's right to hire replace-
hopeful that Judge Breyer will soon               dollars for a floating marina with custom-        ment workers.
clarify the concerns surrounding this             made park benches.                                  Mr. President, I might at this point
subject.                                            7. GSA has stated that there is no leased       insert in the RECORD a progeny of
   There being no objection, the letter           space available in Boston that meets the cli-
was ordered to be printed in the                  ent's needs. Why does the court believe that      American labor law.
RECORD.                                           no site other than the one chosen will meet            PROGENY OF AMERICAN LABOR LAW
                           U.S. SENATE,           its needs? Please note with specifically the        The National Labor Relations Act
                                July 11,1994.     needs that the court believe must be met.         [NLRA] is the principal law that pro-
Hon. STEPHEN BREYER,                                According to reports published in the           vides our basic labor policy. The two
U.S. Federal Courthouse, Boston, MA.              Washington Times, you would not comment
                                                  on this matter publicly because "you have         major components of the NLRA are the
  DEAR JUDGE BREYER: AS you may know, I                                                             Wagner Act of 1935 and the Taft-Hart-
have been working to ensure that federal          not been giving any interviews or comment-
dollars spent on building projects are being      ing while [the] confirmation process is ongo-     ley Act of 1947.
used in the most cost efficient manner pos-       ing."                                               The Wagner Act of 1935 was the first
sible. As such, I have become very concerned        As I know you can appreciate, the Senate        comprehensive Federal measure pro-
about waste and extravagance at the new           has a Constitutional duty to advise and con-      tecting union organizing and collective
Boston Courthouse.                                sent regarding certain nominations made by        bargaining activities in private indus-
   I would appreciate it if you would explain     the President. I believe, therefore, it is cru-   try. The act established broad rights
to me exactly what has transpired to date re-     cial for the Senate to receive, as soon as pos-
garding the design and site selection of the      sible, a full and public accounting on this       for collective actions by employees.
Boston Courthouse. In your explanation, I         issue and your role in developing the plans         The Taft-Hartley Act of 1947 limited
would appreciate it is you would please an-       for the Boston Courthouse.                        union power by preventing secondary
swer the following questions:                       In advance, I thank you for your coopera-       boycotts. Further, it allows States to
   1. What specifically was your role in the      tion.                                             adopt right-to-work laws.
site selection and procurement of such site             Sincerely,                                     The Landrum-Griffin Act of 1959, in-
for the Boston Courthouse?                                                  JOHN MCCAIN,
                                                                                                    creased union democracy by imposing
  2. According to reports, the site chosen by                                    U.S. Senator.
a panel chaired by you originally ranked            Mr. MCCAIN. I yield the floor.                  financial disclosure requirements on
11th out of 12 prospective sites, but that by                                                       unions.
the end of the process it ranked first. Is this                                                        Mr. President, I thing it is important
accurate? What was your rationale for choos-      NATIONAL LABOR RELATIONS ACT                      to note the Wagner Act did not specifi-
ing the Fan Pier site over the other more                                                           cally address the issue of whether em-
highly rated sites studied?                        AND   RAILWAY   LABOR   ACT
  3. According to the Washington Times, in         AMENDMENTS                                       ployees who strike for economic rea-
1989 the Boston Redevelopment Authority                                                             sons are guaranteed return to their
                                                               MOTION TO PROCEED
finished a study saying the city's crowded                                                          former positions at the end of the
federal courthouse would be cheaper to relo-        The Senate continued with the con-              strike. This principle of hiring perma-
cate than to expand. The study listed four        sideration of the motion.                         nent replacement workers was estab-
acceptable sites for a new courthouse, and          Mr. PRESSLER addressed the Chair.               lished by the U.S. Supreme Court rul-
ranked them by feasibility. The Fan Pier            The PRESIDING OFFICER. The Sen-                 ing in 1938 in the case of NLRB versus
site—later selected by you—was rejected.          ator from South Dakota.                           Mackay Radio and Telegraph Com-
Please comment, in light of other studies,                 STRIKER REPLACEMENT BILL                 pany. That decision established a dis-
why you selected the Fan Pier site.
  4. In many cases when courthouses are             Mr. PRESSLER. Mr. President, I rise             tinction between two types of strikes-
built, sites are chosen that are already          today to express my strong opposition             unfair labor practices strikes and eco-
owned by the Federal government or that           to S. 55, the striker replacement bill. I         nomic strikes. The court ruled that
are owned by municipalities that are willing      am opposed to this legislation because            employers may hire permanent re-
to deed the sites to the federal government       it would disrupt the careful balance be-          placements in cases of economic
      UNITED STATES                            OF   AMERICA

Congressional Uecord
                      SECOND SESSION

              VOLUME 140—PART 12

                  JULY 14, 1994 TO JULY 26, 1994
                      (PAGES 16511 TO 18064)

17112                                  CONGRESSIONAL RECORD—SENATE                                            July 20, 1994
  The ACTING PRESIDENT pro tem-             our current system, the free enterprise there was a viable place for the death
pore. Is there objection to extending       system, and which will target and fix penalty and that its constitutionality
morning business by 15 minutes?             the specific problems of that current was settled.
  There being none, morning business        system.                                     He also stated that he regarded as
is extended by 15 minutes.                                                            settled law that the imposition of the
  The Senator from Pennsylvania is                                                    death penalty would not be determined
recognized for the first 10 minutes; the      NOMINATION OF JUDGE BREYER              by what happened in other cases for
Senator from Illinois for the remaining        Mr. SPECTER. Madam President, the people in a given racial category,
5 minutes.                                  nomination of Stephen Breyer will where the issue has been raised, that
  The Senator from Pennsylvania.            come to the floor either later this week because of what happened in some 2,000
  Mr. SPECTER. I thank the Chair.           or early next week. I wanted to make a other cases in Georgia or nationally
                                            few comments after the vote in the Ju- that the death penalty ought to be
                                            diciary Committee, which unani- upset in a specific case where the facts
           HEALTH CARE                      mously, 18 to 0, forwarded Judge of the case warranted the imposition of
  Mr. SPECTER. Madam President, I           Breyer's nomination to the full Senate. the death penalty, on what is the es-
had started to say that I had sought           I believe there had not been much sence of American jurisprudence and
recognition to speak on the pending         doubt about Judge Breyer's resume and that is individualized justice—what
nomination of Stephen Breyer to the         his qualifications in terms of edu- that person did and what the back-
Supreme Court of the United States,         cational background, professional ex- ground of that person is.
but I want to make a comment or two         perience, service as a judge, and his in-   I thought Judge Breyer was also
about the speech just made by the dis-      tellect generally. During the course of forthcoming in being willing to iden-
tinguished Senator from Texas [Mr.          last week's hearings, I think we got tify the Korean conflict as a war. That
GRAMM].                                     significant insight into Judge Breyer's is something Justice Souter would not
  I think it is very important, as Sen-     views to be able to confirm him with do. At a time when there is a continu-
ator GRAMM has noted, to focus on the       confidence.                               ing controversy between the Congress'
cost of the President's health care pro-       Regrettably, most of the nominees sole authority to declare war under the
gram. I think that a significant ad-        who come before the Judiciary Com- Constitution and the President's con-
vance was made yesterday when the           mittee answer only as many questions stitutional authority as Commander in
President said, in effect, that he was      as they have to. That is a circumstance Chief, it is refreshing to find a nominee
prepared to accommodate to the reali-       caused by the premature agreement or who will say, "Yes, the obvious is obvi-
ties and find a plan which worked to-       premature statements by so many Sen- ous. Korea was a war."
ward the goal of comprehensive health       ators indicating that the nominee will      How we present that issue to the Su-
coverage but had some flexibility.          receive their approval. When that hap- preme Court to resolve the conflict is
  I have long shared the President's ob-    pens, it is understandable that the yet to be determined, but at least
jective of comprehensive health care        nominees are not going to take any Judge Breyer did step forward on that
for all Americans. I agree with what        chances and so many of the nominees issue.
Senator GRAMM has pointed out, that         have said very, very little in the con-     On the critical question of taking
the complexity of the President's plan      firmation process. Justice Scalia, for away the jurisdiction of the Supreme
and the absence of choice from the es-      example, would not even answer ques- Court to hear constitutional issues,
sential ingredient of freedom was an        tions about the acceptability of Judge Breyer was unequivocal that the
underlying weakness. I think it was de-     Marbury versus Madison, the very pil- Congress lacked that authority. Jus-
picted graphically by the chart which       lar of the constitutional jurisdiction of tice Rehnquist conceded the Congress
my office prepared, showing at a glance     the Supreme Court of the United could not take away the Court's au-
105 new agencies, boards, and commis-        States.                                  thority on first amendment issues, but
sions created by the President's plan          But in Judge Breyer we have had would not answer on the critical ques-
and new tasks for some 47 other agen-       some significant indications as to tions of the fourth, fifth, and sixth
cies, boards, and commissions, so that      where he stands.                          amendment.
the new bureaucracy was absolutely             The death penalty, I would submit,       On the issue of Judge Breyer's ethics,
overwhelming.                               Madam President, is a very important a matter which has been widely noted
  I think we are now on a track where       tool in the arsenal of law enforcement. in the press, I have no doubt about his
many of us have been headed for some        While I understand the conscientious solid ethical propriety. I do not think
time on health care, as outlined in the     scruples of many people who oppose the that a man of Judge Breyer's caliber is
legislation I introduced on the first day   death penalty, more than 70 percent of on the bench for the monetary benefits.
of the Congress, January 21, 1993, S. 18:    the American people favor it. When Had he chosen another profession, he
to retain the American health care sys-     votes are taken in this body, more than doubtless would make much more than
tem as it provides the best coverage in     70 Senators stand up and affirm it, and a Federal judge.
the world for 86.1 percent of the Amer-     some 37 States have reenacted the           The issue which arose over his hold-
ican people and to target the problems       death penalty after it had been strick- ings as an investor in Lloyd's of Lon-
of coverage for the 37 million now not       en by the Supreme Court of the United don syndicates, I think, ought to be re-
covered; portability, that is, coverage      States on procedural grounds.            considered by the Congress by review-
on a change of jobs; coverage for pre-         Judge Breyer was unequivocal in say- ing the statutory provision providing
existing conditions; and cost contain-       ing that he disagreed with a number of for disqualification in cases in which
ment to hold down the spiraling cost.        other former Justices that the cruel there is some indirect benefit to a
  I believe that all of us in the Con-       and unusual punishment clause of the judge or Justice. Where you have
gress have a very heavy duty in the          eighth amendment did not bar the Lloyd's insuring as many items as they
course of the next several weeks and         death penalty in all cases. Judge do, it is frankly hard to determine
we should not—I repeat, not—be rushed        Breyer left open the question, as I whether there could be any benefit, If
to judgment as we will legislate on a        think it is necessary to do, to evaluate you have a Federal judge handing down
subject where none is more important         the facts of any case. But, unlike Jus- a decision, as Judge Breyer did, on
to the American people, health care,         tice Brennan, Justice Marshall, Justice matters involving Superfund with
virtually a $1 trillion industry, 14 per-    Blackmun, and the indication from enormous sums in issue which could af-
cent of the gross national product.          Justice Powell more recently after he fect Lloyd's of London and Judge
   I do hope we can craft a program          left the bench, where those Justices Breyer's investments, I think the bet-
which will serve the interests of Amer-      felt the death penalty was ruled out by ter course is simply to avoid it and not
ica, which will retain the essence of        the Constitution, Judge Breyer said to have that kind of investment. That
July 20, 1994                           CONGRESSIONAL RECORD—SENATE                                                 17113
is something which I think the Con- dent ought to make clear that he inad- THE 20TH ANNIVERSARY OP THE
gress should revisit.                     vertently said to this audience some-       TURKISH INVASION OF CYPRUS
   Finally, just a comment or two about thing that has been taken out of con-         Mr. KENNEDY. Madam President, in
the pool of candidates who are consid- text and he does not mean, and that he this post-cold-war world, we are con-
ered by the President for the Supreme is going to continue to fight for univer- fronted with numerous and difficult
Court. It seems that every year we find sal coverage for all Americans. Any- foreign policy conflicts. While they
the same people talked about for nomi- thing less is a compromise he should rightly demand our immediate atten-
nation: Steve Breyer, Bruce Babbitt, not make, this Senate should not ac- tion, we must not forget an important
Richard Arnold. It is like the line out cept, and the American people should and tragic conflict which has remained
of "Casablanca," "Round up the usual not accept.                                    unresolved for 20 years and which has
suspects."                                  Madam President, I yield the remain- caused great pain and suffering.
   I am hopeful that the Senate will der of my time to the Senator from               I am speaking of the island of Cy-
take some activity on the advice as- Minnesota.                                     prus. Today marks the 20th anniver-
pect of the advice and consent clause.      The ACTING PRESIDENT pro tem- sary of the Turkish invasion of Cyprus.
We do consent by passing on the quali- pore. There are 2 minutes and 5 seconds As a result of that invasion, an esti-
fications of the nominee. But I think remaining. The Senator from Min- mated 35,000 Turkish troops continue
the Senate could do much more on ad- nesota is recognized.                          to occupy Cyprus illegally. Thousands
vice. I think we ought to create a pool                                             of people, including 5 Americans, re-
of potential nominees by seeking input                                              main missing and unaccounted for, and
from the bar associations of the 50              UNIVERSAL COVERAGE                 nearly 200,000 Greek Cypriots who were
States, the universities, and the courts    Mr. WELLSTONE. Madam President, forcibly expelled from their homes by
to find others who might be well quali- I thank the Senator from Illinois, my Turkish troops are still refugees.
fied for this position.                   very good friend, someone whom I real-      Turkey's pretext for the invasion was
   I see my time has expired.             ly believe in. I simply want to echo his an unsuccessful coup by the Greek
   I thank the Chair and yield the floor. remarks.                                  junta in 1974 against the Cypriot Gov-
   The ACTING PRESIDENT pro tem-            I believe the choice of words yester- ernment led by Archbishop Makarios.
pore. Under the prior unanimous-con- day by the President, for whatever rea- Turkey claimed that a 1960 treaty
sent agreement the Senator from Illi- son, was unfortunate. There are people granted it the right to send troops.
nois is recognized for 5 minutes.         in the country who are going to get on However, within a week of the coup,
                                          buses and come to Washington to speak constitutional order had been restored
                                          in their own voices about why they on Cyprus, eliminating the need for
        UNIVERSAL COVERAGE                need decent health care for themselves continued Turkish intervention. De-
   Mr. SIMON. Madam President, I want and their loved ones. What are they spite numerous calls for withdrawal
to comment briefly on the unfortunate getting on the buses for? Do they not from the international community, the
statement made yesterday by the have to know what the President be- Turkish occupation continues to this
President to the Governors. There was lieves in and is willing to fight for; day.
an apparent—and I say "apparent" be- what all of us believe in and are willing        In fact, Turkish policy on Cyprus has
cause it is not real clear—an apparent to fight for?                                supported the creation of a separate
backing off of universal coverage, hint-    I call on the President as well today and independent Turkish-Cypriot state.
ing that 95 percent coverage might be to clarify his remarks yesterday and to Following the 1974 invasion, Turkey
acceptable. That is not acceptable to be crystal clear that he is going to live pursued a policy of ethnic cleansing
this Senator and I do not think it is ac- up to the commitment that he made to aimed at removing Greek Cypriots
ceptable to the American public.          the people of this country, where he from the occupied area. Turkey ex-
   If the majority leader, who is fash- held that pen forward and said, "If it is pelled nearly 200,000 Greek Cypriots
ioning a compromise bill right now, not universal coverage, each and every from their homes and colonized the ter-
comes up with a bill that covers 95 per- person covered, I will yeto this piece of ritory by sending approximately 80,000
cent of the people—that means 1 out of legislation." I think people really re- Turkish citizens to inhabit the occu-
20 Americans left out—I am going to spect conviction and they respect pied area.
have an amendment that, by lottery, someone who is willing to fight for               The number of Turkish troops and
will leave out 1 out of 20 Senators and what he believes in. They respect the settlers on Cyprus is now equal to the
1 out of 20 White House personnel.        President for doing that. This is a deci- remaining indigenous Turkish-Cypriot
   The President ought to be in there, sive moment. We cannot have this population. Sadly, economic devasta-
standing up for universal coverage as health care effort hijacked, and I will tion and other problems caused by the
he did when he spoke to the joint ses- join my colleague from Illinois, if we 1974 Turkish invasion caused 40,000
sion, I think it was the State of the have a bill on the floor that does not Turkish Cypriots to emigrate.
Union Message. He ought to be stand- provide the universal coverage, with             In November 1983, the Turkish-Cyp-
ing up fighting for universal coverage, the same amendment that we would riot leadership unilaterally declared
making it clear that he is going to ex- have 1 out of every 20 Senators by lot- Turkish-occupied Cyprus an independ-
pend every effort. In my opinion he tery not covered.                               ent state. This illegal act was con-
ought to issue a statement today clari-     I also plan to introduce my amend- demned by the U.S. Government and
fying that he stands for universal cov- ment that says whatever health plan the international community. Instead
erage, he is going to fight for universal we pass, Madam President, provides of joining the globaL community in
coverage, and he is not going to leave people with as good coverage as what condemning this illegal act, Turkey
1 out of 20 Americans out of health cov- we have. Remember all of us are cov- was the only country in the world to
erage in this Nation.                     ered—universal. It is a good package of recognize the so-called Turkish Repub-
   Anything less is just totally unsatis- benefits, good coverage for ourselves lic of Northern Cyprus.
factory, as far as I am concerned. I and our loved ones. There is no dis-             Over the years, the United Nations
know many of my colleagues join in crimination because of a prior or cur- has repeatedly tried to resolve the
that sentiment. We all have a weakness rent health care condition. And our problem. Because of Turkish-Cypriot
in politics—excluding the Presiding Of- employers contribute to the cost. I intransigence and Turkey's unwilling-
ficer, of course—of saying what an au- think that amendment ought to be out ness to cooperate, these efforts have
dience might want to hear. PAUL SIMON on the floor of the Senate very soon as been to no avail.
has that weakness, Bill Clinton has well.                                             During the past year, the United Na-
that weakness, PAUL WELLSTONE has           I thank the Senator from Illinois and tions tried to revive negotiations with
that weakness. And I think the Presi- am proud to join him in these remarks. confidence-building measures intended
                       UNITED STATES                              OF   AMERICA

Congressional Hecord
                     PROCEEDINGS AND DEBATES OF THE 103d               CONGRESS
                                          SECOND SESSION

                                    VOLUME 140—PART

                                     JULY 27, 1994 TO AUGUST 3, 1994
                                         (PAGES 18065 TO 19448)


79-059   0—97 Vol. 140 (Pt. 13) 1
18232                                       CONGRESSIONAL RECORD—SENATE                                                  July 27, 1994
the people in this matter. They will            have a clear understanding of just how        gants the opportunity to seek the
watch and judge and rightfully hold us          far we are going to go, of how many           recusal of any judge whom they be-
accountable for whatever we enact in            other existing programs are going to be       lieved may have had a conflict.
the way of health care reform. There is         loaded onto the boat, and the cost of           Not surprisingly, several prominent
no ducking this one. There is no                carrying that extra cargo. The Amer-          legal and ethics experts have reviewed
finessing it. This health care legisla-         ican people and this Senate must have         the Lloyd's investment, and the con-
tion will have ramifications for years          a firm understanding of how the canvas        sensus view is that Judge Breyer com-
in every facet of our national life. Too        of our poor beleaguered budget is going       plied with all relevant laws and ethical
timid a proposal could be hurtful to            to be stretched so that our boat will         standards.
our people, while too broad a proposal          sail and not simply founder on the               Mr. President, as someone who
could devastate our economy. Now is             shoals of overcommitment and the              worked closely with Judge Breyer
the time for thoughtful analysis and            rocks of too many good intentions.            when he served as chief counsel to the
calm, reasoned thinking. It is my hope            Unless we do this, Mr. President, we         Senate Judiciary Committee, I know
that in the coming days Senators will           may be confronted with the apparition         first-hand that he is a man of integrity
buy those ear plugs and locate that             of Banquo's ghost, which would sit at         and good judgment. I cannot imagine
cave—perhaps in the Allegheny Moun-             the head of an empty table for years or       Judge Breyer intentionally trying to
tains—until we see the legislation,             even decades to come.                         enrich himself by issuing an opinion fa-
until we have an opportunity to study             I yield the floor.                          vorable to his own financial interests.
and debate it. The Devil is in the de-                                                        In fact, throughout the confirmation
tails. So I hope that we will stop, look,                                                     process, no one has offered any plau-
and listen until we have the CBO esti-            IMPROVING AMERICA'S SCHOOLS                 sible explanation of how Judge
mates and begin a thorough, considered                         ACT OF 1994                    Breyer's environmental rulings may
debate about where we are going on                 The Senate continued with the con-         have benefited him.
this most important and sensitive of            sideration of the bill.                         I will not speculate on why the New
measures.                                          Mr. DOLE. Mr. President, the pend-         York Times ran its misguided edi-
  Marcus Manilius, an early first cen-          ing business is still the education bill?     torial, but I do know that there are
tury A.D. poet, once wrote:                        The PRESIDING OFFICER. The Sen-            those on the left side of the political
  (Human reason) freed men's minds from         ator is correct.                              spectrum who may not want a thought-
wondering at portents by wresting from Ju-         Mr. DOLE. Mr. President, I ask unan-       ful moderate like Judge Breyer sitting
piter his bolts and power of thunder, and as-   imous consent to just speak for 3 min-        on the Nation's Highest Court.
cribing to the winds the noise and to the       utes on another matter, and not have it         Unfortunately, if history is any
clouds the flame.                               interfere with any of the amendments          guide, they will go to great lengths to
  Let us inform the American people             to the pending matter.                        achieve their goals, including trying to
clearly through our debate and study               The PRESIDING OFFICER. Without             smear a good man's good reputation.
of just what we are doing to their              objection, it is so ordered.                    Mr. President, I ask unanimous con-
health care system, and not leave them             The Senator is recognized.                 sent to have printed in the RECORD the
or us to wonder at portents.                                                                  New York Times editorial of July 26,
  Mr. President, following the battle of                                                      1994, entitled "A Cloud on the Breyer
Shrewsbury, in which the son of the                   JUDGE STEPHEN BREYER                    Nomination."
Earl of Northumberland was killed, the             Mr. DOLE. Mr. President, I want to           There being no objection, the edi-
son being Henry "Hotspur" Percy, the            take a few moments to respond to an           torial was ordered to be printed in the
rebels gathered to assess the situation,        editorial that appeared in yesterday's        RECORD, as follows:
and to determine whether or not and             New York Times. The editorial, enti-           [From the New York Times, July 26,1994]
when and where and how they should              tled "A Cloud on the Breyer Nomina-               A CLOUD ON THE BREYER NOMINATION
go about continuing the rebellion               tion," suggests that Judge Breyer               Eager for swift confirmation of the Su-
against the English King Henry IV.              should have recused himself from cer-         preme Court nominee Stephen Breyer, sen-
  We find in Shakespeare, part II of            tain environmental cases because of his       ators of both parties are rushing to a floor
King Henry IV, that the Archbishop of           investment in a Lloyd's of London in-         vote without fully investigating significant
York, whose name was Scroop, and                surance syndicate. The editorial un-          ethical issues connected to the nominee's in-
three of the Lords—Lord Hastings,               fairly paints a picture of someone            vestments. This irresponsible failure by the
Lord Mowbray, and Lord Bardolph—                                                              senate leaves Judge Breyer with a cloud still
                                                whose personal ethics are open to ques-       hanging over his nomination.
had gathered in the Archbishop's pal-           tion.                                           Judge Breyer, who is Chief Judge of the
ace to review the situation, following            Judge Breyer has denied any conflict        U.S. Court of Appeals in Boston, answered
the disaster in which young Hotspur             of interest, testifying under oath that       the Senate Judiciary Committee's questions
had been killed. And it was Lord                he never sat on any case in which he          for three days and won unanimous clearance
Bardolph, who uttered these caution-            had reason to believe that Lloyd's was        for a floor vote scheduled for tomorrow. But
ary words:                                      an interested party.                          the committee failed to fully explore the
When we mean to build,                                                                        judge's participation in pollution cases de-
                                                  During his tenure on the First Cir-         spite his investment in a Lloyd's of London
We first survey the plot, then draw the         cuit Court of Appeals, Judge Breyer           venture that heavily insured asbestos and
      model,                                    also developed an elaborate screening         toxic pollution risks in this country.
And when we see the figure of the house,        system to prevent conflicts from occur-         At issue is Judge Breyer's compliance with
Then we must rate the cost of the erection;                                                   the Federal recusal statute, which requires
Which if we find outweighs ability,             ring:
                                                  Each year, I am told, he provided the       judges and Justices to disqualify themselves
What do we then but draw anew the model                                                       when their impartiality "might reasonably
In fewer offices, or at least desist            first circuit clerk with a list of his per-   be questioned." In addition, they must sit
To build at all?                                sonal investments, including the              out cases where they have a financial inter-
  Mr. President, those words of caution         Lloyd's of London investment. Judge           est In a party to a lawsuit or any interest
might very well be applicable in this           Breyer typically requested that he not        "that could be substantially affected by the
health care situation.                          be assigned to any case involving any         outcome of-fche proceeding."
  Before we begin this journey into the         company in which he had an invest-              Lloyd's was not a named party In any of
unknown waters of health care re-               ment. In addition, Judge Breyer per-          the eight pollution cases in which Judge
form—and I am not saying we should              sonally reviewed cases for potential          Breyer took part. But what if Lloyd's, fa-
                                                conflicts and disclosed his Lloyd's in-       mous around the world for insuring all kinds
not move out into those waters, but be-                                                       of major risks, were an Insurer of a company
fore we begin that journey—let us have          vestment on his annual financial dis-         involved in a pollution lawsuit? Judge
a clear and cogent understanding of the         closure report. Since these reports are       Breyer did recuse himself from asbestos liti-
bill. Let us first see the bill. Let us         available to the public, it gave liti-        gation but, curiously, not from other major
July 27, 1994                               CONGRESSIONAL RECORD—SENATE                                                       18233
pollution disputes. Only senator Howard          imagine the violence that many stu-          compare the achievement of participat-
Metzenbaum saw fit to mention this incon-        dents experience in our Nation's             ing and nonparticipating students, and
sistency; the committee failed to question       schools. I guess you could go back to        to assess the program's effects on in-
the nominee in detail about what steps, if       when we were in school. When I was in        creasing parental and community sat-
any, he took to find out about Lloyd's in-
volvement as an insurer.                         school, we had a bully or two. But we        isfaction and its ability to foster great-
  Judge Breyer assured the committee that        did not have armed thugs—ones that           er parental involvement.
he had not violated the standard that re-        would make Kim Il-song cringe—roam-            No loss of Federal funds to public
quires recusal from cases that would have a      ing the halls.                               schools.—Public schools which lose
"direct and predictable financial impact" on       Let us not fool ourselves. Violence is     students as a direct result of the dem-
his investments. Yet Newsday has reported        not isolated to a few schools. In fact, it   onstration may count such children for
that Lloyd's was one of the insurers of a        is nearing epidemic proportions. It hap-     purposes of receiving funds under any
company involved in one of the eight pollu-      pens in the inner cities, and unfortu-       program administered by the U.S. Sec-
tion cases. That sounds like a direct con-
tradiction of Judge Breyer's testimony. It       nately, it is happening in the Heart-        retary of Education.
warranted closer investigation. Could the        land and even in Kansas. I am saddened         Civil rights protection.—Participat-
judge have known about Lloyd's involve-          to say that we have had beatings and         ing schools may not discriminate on
ment? did he investigate the other cases suf-    shootings in Wichita, Topeka, Kansas         the basis of race. The amendment also
ficiently to guard against sitting in a case     City, and even in some of our smaller        stipulates that demonstration projects
that might affect his financial interest?        towns like Junction City. These are          could not continue if they interfere
Again, the committee was not inquisitive,        not statistics. They are somebody's lit-
though Senator Arlen Specter has called for                                                   with desegregation plans.
re-examining the recusal law with an eye to-     tle girl or boy. And sometimes they are        Finally, Fight or Flight is limited to
ward having judges disqualify themselves if      teachers and principals.                     a 3-year demonstration program.
their investments are even indirectly in-          Earlier this year, Congress helped           Some say, "What happens at the end
volved.                                          schools tighten security by passing the      of 3 years? This is going to be another
  As it turned out, Judge Breyer's ruling in     Safe Schools Act. That measure was           one of those unfunded mandates."
that case might actually have gone against       definitely a step in the right direction.      So we have revised our amendment
any financial interest of his own. But the       It seems to me, however, that more           to make certain this is a demonstra-
judge surely showed bad judgment in failing      metal detectors will not give parents        tion project, period. It is not an effort
to explore Lloyd's involvement, and the inci-    and their children the peace of mind         to start something and then leave it up
dent leaves one wondering how many other         they are entitled to. Parents deserve        to the States or local communities,
cases Judge Breyer ruled on that might have
put his Lloyd's investment at risk.              more options. They should not be             what we call an unfunded mandate.
  Judge Breyer, a popular former staff chief     forced to send their children to crime         In short, this is a very simple amend-
for the Judiciary Committee and a moderate       ridden schools.                              ment. If your son or daughter attends
liberal, is being rushed through confirmation      Mr. President, since we passed the         one of 20 violent schools, you can use
by democrats trying to please President          Safe Schools Act, I have found that          fight or flight to send them to a safe
Clinton and Republicans relieved at the          many of my colleagues shared the same        school. I think that would make a lot
nominee's moderate views. But his possible       concerns. Over the course of the last        of sense to a lot of parents in inner
failure to recuse himself from cases whose       several months, my office has worked         cities and, as I said, in middle-sized or
outcomes might affect his financial interests
has not been thoroughly explored. The Sen-       closely      with    Senators     COATS,     smaller cities.
ate is voting on faith and political need, not   LIEBERMAN, DANFORTH, and BROWN to              I am certain that few of my col-
knowledge. Based on the inadequate record        find a way to give parents more alter-       leagues will argue that fight or flight
in hand, Judge Breyer has not been shown to      natives. What we have come up with is        will kill off some inner-city schools.
deserve the prize that will be awarded him       Fight or Flight, a demonstration pro-        Personally, I am more concerned about
by the Senate.                                   gram that would help low-income par-         the students, more concerned about
                                                 ents send their children to safer ele-       their safety. You can replace buildings,
                                                 mentary and secondary schools.               but you cannot replace children. And
 IMPROVING AMERICA'S SCHOOLS                       Let me give you a summary of what          that is what this amendment is all
              ACT OF 1993                        the bill would do.                           about.
  The Senate continued with the con-               Fight or Flight is a $30 million dem-        The bottom line is that students
sideration of the bill.                          onstration that will target as many as       should have safe places to learn. If a
            AMENDMENT NO. 2417                   20 crime prone schools. It will be au-       school is crime-ridden, I see no reason
(Purpose: To create a demonstration pro-         thorized under Goals 2000. For those         why children should be forced to go
  gram to provide students who attend vio-       States which wish to participate, only       there, especially if the only thing keep-
  lence-prone schools with scholarships to       students from schools that the Sec-          ing them there is that their families
  enable such students to attend safe            retary of Education designates as            cannot afford to send them to a better
  schools)                                       crime-prone will be eligible for edu-        school.
  Mr. DOLE. Mr. President, I am, along           cational vouchers that can be spent at         Many of us have struggled with the
with the distinguished Senator from              both private and public schools.             so-called issue of school choice. I for
Indiana, offering an amendment. We                 Eligibility requirements.—Students         one believe it is a concept worth test-
have revised the amendment and I am              will be eligible if they attend a vio-       ing. I am not saying that either public
having copies made. But I thought                lence-prone school and if they qualify       or private schools are inherently bet-
maybe, in the interest of time, we               for free or reduced priced meals under       ter. The point Is that all Americans,
could make our statements and then               the National School Lunch Act.               rich or poor, should be able to choose
we will send the amendment to the                  Use of scholarship funds.—Funds can        the best education for themselves and
desk.                                            be used for tuition and fees, reasonable     for their children. By introducing an
  I would add that I have discussed this         transportation costs, and parents can        element of competition, we can encour-
with the Senator from Massachusetts,             use up to $500 to obtain supplementary       age schools to work harder to provide
Senator KENNEDY, and the Senator                 academic services for their child. For       the best possible education. But that is
from Kansas, Senator KASSEBAUM.                  students attending a private school,         not what this amendment is about. It
  It may or may not be that we can               any remaining funds will be returned         is about helping parents protect their
vote this evening because one of our             to the State to provide additional           children from the violence that seems
cosponsors, Senator LIEBERMAN, is not            vouchers. Public schools, on the other       to run rampant in some of our Nation's
available. But we will just have to see          hand, will be able to keep remaining         schools.
what happens.                                    funds.                                          Mr. President, there are strongly
  Mr. President, when I read the news-              National evaluation^—This amend-          held beliefs on both sides of the choice
papers these days, it is hard for me to          ment would require the Secretary to          issue. I respect the beliefs of others,
July 28, 1994                            CONGRESSIONAL RECORD—SENATE                                                18491
we need a uniform benefit set at the ing. And it is true that he has spent some past nominees—evasion that
national level, why we need national much of his life as a legal scholar, erodes the Senate's ability to faithfully
antitrust rules, why we need national rather than a hands-on practitioner. carry out its advise-and-consent re-
liability rules, that sort of thing. Re- But we should not assume that because sponsibilities.
member, it is because people do not get Judge Breyer has been fortunate, and           Judge Breyer was probably more
their medicine in States, they get it in enjoys the life of the mind, he is unable straightforward with the members of
local communities and those commu- to care about others.                             this committee than many nominees in
nities overlap—Tennessee and Ken-             Judge Breyer seemed to recognize recent history. In fact, Senator SPEC-
tucky; North Dakota and Minnesota; during our confirmation hearings that TER went as far as to coin a new stand-
South Dakota and Minnesota, and so his actions as a Judge have very real ard for nominees to live up to: the
on. So people buy their health care in consequences for the lives of the people Breyer Standard.
communities, they do not buy it in the law governs. And he appears to be               In my opinion, however, we still have
States. We need national rules so these aware that beyond the marble columns a way to go before we achieve the can-
local markets can provide more and of the Supreme Court is a world in dor that the confirmation process de-
better health services for less money which the politically powerless are en- mands and deserves. So I would like to
for all of our citizens.                   titled to as much justice as those impose an even higher standard on fu-
   Mr. President, I yield the floor.       Americans who hire the best lawyers ture nominees than perhaps would Sen-
   Mr. KOHL addressed the Chair.           and lobbyists.                           ator SPECTER.
   The PRESIDING OFFICER (Mr.                 It may be that Judge Breyer still has    In the meantime, I commend Presi-
MATHEWS). The Senator from Wiscon- to demonstrate his professed commit- dent Clinton for nominating Judge
sin.                                       ment to making the law work for the Breyer—a man of great ability, who
                                           average person. But I believe our con- has demonstrated an enduring commit-
 NOMINATION OF JUDGE STEPHEN fidence in him will be justified.                      ment to public service and to the law.
                  BREYER                      Having said this, there was much we I look forward to his tenure on the
                                                           about Stephen
   Mr. KOHL. Mr. President, I come did not learnmy confidence inBreyer, Court.
                                           and—despite                       him—
here this morning to speak in behalf this concerns me. Judge Breyer's elo-             The PRESIDING OFFICER. The Sen-
and to support the nomination of quence often gave him the appearance ator from Washington [Mr. GORTON] is
Judge Stephen Breyer to the U.S. Su- of answering questions when, in fact, recognized to speak for up to 30 min-
preme Court, and to speak briefly—but he actually side-stepped them with utes.
critically—about the process that I be- sugar-coated generalities.
lieve will result in his confirmation.                                                    REAUTHORIZATION OF THE
   Judge Breyer came before the Judici-       For example, he would not give an
                                                                                          ENDANGERED SPECIES ACT
ary Committee with a reputation as a opinion on whether courts should be re-
brilliant legal scholar and a fair-mind- quired, at the very least, to consider        Mr. GORTON. Mr. President, I join
ed judge.                                  public health and safety before allow- Senator SHELBY today in calling on the
   For the most part, the committee's ing for secrecy in civil litigation. And Clinton administration and this Con-
hearings confirmed these judgments. he refused to discuss many subjects, in- gress to move promptly to enact a sig-
Judge Breyer impressed us with his cluding voting rights jurisprudence, nificant reform of the Endangered Spe-
ability to simplify complex legal doc- gender-classifications, and his own de- cies Act. The act must be changed to
trines and cut to the heart of fun- cision on abortion counseling—Rust require better science in listing deci-
damental constitutional questions. His versus Sullivan—with any degree of sions, greater protection for private
answers revealed that he is a moderate, specificity.                                property rights, and more balance be-
that he is a reasoned man of principle        Whenever Judge Breyer felt the need tween species protection and human
with a commitment to the rule of law; to avoid answering a question, he impacts.
a man who is likely to strengthen the would cloak himself in his black robe            To many of my colleagues, the reau-
center of the Supreme Court, rather and claim that the issue was within thorization of this act may seem to be
than polarize it.                          Congress' domain or that the question just another policy debate—one that
   Throughout the hearings, two main took him out of his role as a judge. we can tackle whenever space opens up
criticisms were levied against Judge Yet, at the same time, he did speak on the Senate calendar. But for many
Breyer. First, many charged that openly and freely on other issues which families and communities in the State
Judge Breyer acted unethically be- were just as likely to appear before the of Washington and across the Nation,
cause he ruled in cases that may have Court, or just as easily characterized every day that goes by without a re-
indirectly affected his investments.       as issues for Congress rather than the form of the act means more jobs lost,
  I do not believe Judge Breyer acted courts.                                       more mills and factories closed, and
unethically and I do not doubt his in-       Why? The answer is by now well more demands on social service agen-
tegrity in the least. If judges had to known: nominees seem only to answer cies already under extreme stress.
recuse themselves in every case that questions when they want to—or when               We simply cannot afford to wait
presented a possible conflict of inter- they feel they need to.                     much longer, Mr. President.
est, our courts would become para-           I point all this out not to chastise      Regrettably, the current administra-
lyzed. But Judge Breyer could have Judge Breyer, whom I respect. But I tion does not share this sense of ur-
taken more significant measures to cannot ignore a nominee's unwilling- gency. President Clinton and Secretary
dispel any appearance of impropiety. I ness to answer reasonable questions. Babbitt have said that the act is flexi-
am pleased, therefore, that he has Indeed, the process demands that we ble enough to provide for the needs of
promised, at the very least, to divest should not.                                  both people and other species. They
himself of all insurance holdings as         Mr. President, we all know that be- have suggested that the ESA only
soon as possible, although it is not cause a Supreme Court Justice has life needs minor changes.
clear exactly when that will occur.        tenure, the confirmation process is cru-    But the administration's own experi-
   It was also suggested that because cial—it is the public's only opportunity ence with the ESA contradicts this
Judge Breyer has spent most of his life to learn what is in the heart and mind point of view.
dealing with books and theories, he of a nominee. Of course, we also recog-            President Clinton came to the Pa-
lacks Justice Blackmun's empathy for nize that there are limits to what a po- cific Northwest during his campaign,
"the poor, the powerless and the op- tential Justice of the Supreme Court promising balance in the application of
pressed."                                  can say before the Senate.               the ESA to the management of timber
   Well, it is true that Judge Breyer did    But these limits do not justify the harvest on Federal lands\ He promised
not have an underprivileged upbring- type of hedging that we have seen from to reconcile the needs of the ecosystem
  18544                                      CONGRESSIONAL RECORD—SENATE                                             July 28, 1994
  under this act to any local educational        We have come to a sad state of affairs lent and also have worked with those
  agency unless such agency has a policy when metal detectors have to be in- to free some of them from various
  requiring referral to the criminal jus- stalled at the schoolhouse door. Let us gangs and gang activities.
  tice or juvenile delinquency system of end this climate of violence in our               It has had a profound effect and im-
  any student who brings a firearm or schools by ending the tolerance for pact on stability in the school and also
  weapon to a school served by such lawbreaking students. Let the police in terms of incidence of violence within
  agency."                                     deal with these youthful criminals so the community.
     And "For the purpose of the section, that our teachers and the good stu-               So this kind of amendment will, one,
  the terms 'firearm' and 'school' have dents in our schools do not have to.             give information, so if others want to
  the same meaning given to such terms                                                   develop not just community policing,
  in section 921(a) of title 18, United                                                  this is really a community sort of pros-
  States Code."'                               UNANIMOUS-CONSENT AGREEMENT ecution, and it has been well accepted
     This is a serious problem that the          Mr. MITCHELL. Mr. President, as if and appreciated by all the different
  amendment is attempting to address, in executive session, I ask unanimous community leaders there.
  the problem of guns and other weapons consent that at 9 a.m. on Friday, July             I think the kind of amendment that
  appearing in the classrooms and hall- 29, the Senate proceed to executive ses- the Senator has offered can help and
  ways of our Nation's schools. The sion to consider the nomination of Ste- assist in getting that kind of informa-
  amendment would require every local phen Breyer to be an Associate Justice tion and that kind of awareness for
  educational agency to establish policy of the Supreme Court; that there be 6 other communities across the country.
  requiring school officials to refer to hours for debate to be equally divided             So, Mr. President, I urge adoption of
  the criminal justice or juvenile delin- between the chairman and ranking the amendment.
  quency system any student who brings member of the Judiciary Committee or                The PRESIDING OFFICER. The
                                                       designees; that               the
  a firearm to school. Possession of a their or yielding back of following Sen- amendments have not yet been sent to
                                               using                      time, the
  weapon on school property is a crime, ate vote, without any intervening ac- the desk.
  and when a crime occurs, the police tion, on the nomination; that if con-                Mr. JEFFORDS. Mr. President, I also
  ought to be notified.                                                                  would like to join in commending the
    Unfortunately, Joseph Maddox, Chief firmed, the motion to reconsider be ta- senior Senator from West Virginia for
                                                          the President
  of Police for the Penn Township Police bled, andof the Senate's be immediately not only the excellent amendment but
                                               notified                  action; and the the excellent discussion on the problem
  Department noted in the winter 1994 Senate return to legislative session.
  edition of School Safety Magazine:                                                     of education. I agree with him whole-
    Often when crimes occur at school, the de-   The PRESIDING OFFICER. Is there heartedly that before we act we must
  cision is made to address the problem by objection?                                    have the information and data nec-
  means of school discipline, as opposed to      Mr. JEFFORDS. Reserving the right essary to do that. This will help us in
  dealing with the criminal justice system.    to object, I just say it has been cleared that quest.
     School discipline is fine, but it is on our side of the aisle and we have xio                    AMENDMENT NO. 2426
  simply not enough. Every thinking objection to the request.                            (Purpose: To direct the Secretary to collect
  American should be outraged by the             I withdraw the reservation.               data on violence in elementary and second-
  guns in our schools. And even if the po-       The PRESIDING OFFICER. Without            ary schools)
  lice choose not to make a report or de- objection, it is so ordered.                                AMENDMENT NO. 2427
  cline to submit the case for prosecu-          Mr. MITCHELL. Mr. President, al- (Purpose: To provide that no funds shall be
  tion because of the nature of the of- though not included in the agreement,              made available under the Elementary and
  fense, the police should, nevertheless, I wish to state my intention that when           Secondary Education Act of 1965 to any
  be notified.                                 the Senate votes on the Breyer nomi-        local educational agency unless such agen-
                                               nation tomorrow, it will be the last        cy has a policy requiring referral to the
    Individuals who bring dangerous vote of the day.                                       criminal justice or Juvenile delinquency
  weapons to schools are committing a            Mr. KENNEDY addressed the Chair.          system of any student who brings a fire-
  crime and they ought to be dealt with          The PRESIDING OFFICER. The Sen-           arm or weapon to a school served by such
  by our juvenile or criminal justice sys- ator from Massachusetts.                        agency)
  tem. To do anything less is to send a          Mr. KENNEDY, Mr. President, I             Mr. BYRD. Mr. President, I thank
  message of tolerance for breaking the would just like to indicate that I hope both managers. Inasmuch as they have
  law and of a less-than-serious attitude the Senate will accept the Byrd amend- expressed a willingness to accept the
  about the safety of other students. ments. The first amendment requires, amendments, I send the amendments
  This type of odious behavior cannot be as the Senator has pointed out, the col- to the desk. I ask unanimous consent
. tolerated, and we, in this Chamber, lection of data on school violence in el- that they be considered en bloc, agreed
  have an obligation to do something to ementary and secondary schools and to en bloc, and that the motions to re-
  ensure that it is not tolerated. We submitting a report to Congress by consider be laid on the table en bloc.
  must get the guns out of our schools, January 1998.                                      The PRESIDING OFFICER. Is there
  and while we are about it, we must also        The second one requires the LEA's to objection to the unanimous consent re-
  get the individuals that bring the guns refer to criminal justice or juvenile au- quest?
  out as well. My amendments would thority any student who brings a gun                    The clerk will report the amend-
  help to accomplish both goals.               to school.                                ments.
     So let us think about preserving the        Let me just mention, I hope both          The assistant legislative clerk read
  good apples in the barrel, not just amendments will be accepted.                       as follows:
  about preventing further spoilage of           I will take 1 minute of time.             The Senator from West Virginia [Mr.
  the bad ones.                                  We have in my own State in Law- BYRD] proposes amendments numbered 2426
    Mr. President, one of the most impor- rence, MA, an enormously interesting and 2427.
  tant things we can provide to our program that has been stimulated by                    Mr. BYRD. Mr. President, I ask unan-
 young people—those who will soon the district attorney where they work imous consent that reading of the
  take up the reins of leadership in our with the school officials, the youth amendments be dispensed with.
  country—is the ability to obtain an service, the educators and the social                The PRESIDING OFFICER. Without
 education. We owe our young people service agencies and have prioritized objection, it is so ordered.
  that. We owe them the chance to learn and ranked the juveniles who are the               The amendments are as follows:
 in a school free from guns and free most threatening and have been the re-                           AMENDMENT NO. 2426
 from violence. We owe our teachers re- peaters in terms of violence.                      On page 874, line 9, strike "The State" and
 lief from the fear of being shot while          They have accelerated the attention Insert "(1) BIENNIAL EVALUATION.—The Sec-
 they are simply trying to teach a class. for those who have been the most vio- retary", and Indent appropriately.
July 28, 1994                         CONGRESSIONAL RECORD—SENATE                                                  18571
                                        ment to serve honorably? And finally, well focused and produce inconsistent
States seat in the Council; (2) allowing the
United States and two other industrialized
                                        does the nominee have the character to and illogical results.
countries, acting in concert, to block deci-
                                        be entrusted with the responsibility?       The cause of this problem in Judge
sions in the Council; (3) preventing the As-
                                          Without a doubt, Stephen Breyer has Breyer's view is the disjointed deci-
sembly from acting independently of Council
                                        the experience necessary to serve as a sionmaking process that we in the Con-
recommendations; and (4) establishing a fi-
                                        Supreme Court Justice. He has had an gress and as a nation use to choose the
nance committee, including the five largest
                                        exemplary career in the executive, leg- risk reduction policies that are actu-
contributors to the organization's budget,
which must make decisions by consensus; islative, and judicial branches. He has ally imposed. The sources of risk to
                                        served on the Federal bench for 14 human health and the environment
  Ensure that future amendments to the re-
gime could not be adopted over United   years, and spent the last 4 years as come to the attention of the public and
States objections;                      chief judge of the First Circuit Court of the Congress one-at-time. They are
  Eliminate provisions compelling the trans-
                                        Appeals.                                  considered by a multitude of commit-
fer of seabed mining technology;
  Allow the U.S. acting alone to veto any  On the question of temperament, I tees and subcommittees in the legisla-
                                        believe Judge Breyer is qualified to ture. They are regulated under a series
plan to distribute revenues to states or other
                                        serve on America's highest court. His of statutes with disparate goals and ob-
entities, such as national liberation move-
ments;                                  decisions on the Federal bench have jectives. The statutes are carried out
                                        the reputation of being thoughtful and by several departments and agencies of
  Eliminate the power of the organization to
limit production from the deep seabed towell-reasoned, without suggesting any the executive branch.
protect the interests of land-based producers
                                        particular political agenda. I trust he     In Judge Breyer's view, the result is
and, in its place, establish restrictions on
                                        will continue to apply the law neu- a confusing and wasteful web of regula-
subsidization of seabed mining based on                                           tions that do not achieve the greatest
GATT provisions;                        trally and fairly.
  Grandfather in seabed mine site claims byAnd finally, based on the evidence risk reduction for the dollars we in-
                                        that is available, I have concluded that vest. He points to a swamp in New
three U.S.-led multinational consortia on
                                        Judge Breyer has the character nec- Hampshire that is cleaned up to ex-
terms "no less favorable t h a n " the best
                                        essary to be entrusted with a seat on traordinary levels under the Superfund
granted to Japanese, French, Russian, Indian
or Chinese claimants, which have alreadythe Supreme Court.                        Program, while Boston Harbor remains
been registered;
  Eliminate the U.S. $1,000,000 annual fee
                                                                                             He cites a fivefold discrep-
                                           I am aware that questions have been polluted. risk assessment outcomes be-
                                                                                  ancy in
                                        raised about Judge Breyer's member- tween EPA and FDA methods. He re-
miners would have had to pay prior to com-
mercial production; and                 ship in Lloyd's of London—a syndicate ports examples of risk reduction regu-
                                        that underwrites insurance for corpora- lations that may actually increase
  Constrain the Enterprise by: (1) requiring a
                                        tions with potential liability for envi-
future decision by the Council (which the
                                        ronmental cleanup costs—at the same health risks from other sources.
U.S. and a few allies could block) to make it
operational; (2) subjecting it to the same re-
                                        time he was reviewing toxic waste           Judge Breyer is not alone in raising
quirements as other commercial enterprises;
                                        cases as a Federal appeals judge.         these concerns. In 1987, the EPA itself
                                           But there is no evidence that his de- published a studysuggested"Unfinished
(3) eliminating the requirement t h a t parties
                                                                                  Business" which
                                        cisions had a direct impact on any of ernment and private sector that Gov-
to the convention fund its mining activities;
(4) providing t h a t it operate through vol-                                                                     resources
                                        his investments, and I believe Judge were being wasted because Government
untary joint ventures with other commercial
                                        Breyer's assertion that his impartial- policy too often regulated low-level
enterprises; and (5) eliminating provisions
                                        ity was not affected in any of those risks while larger threats went
that would compel other commercial enter-
prises to provide it with technology.   cases.
  In addition to responding to the specific                                                           in 1990, the
                                           Rather than showing a defect in unaddressed. And EPA came to Science
                                                                                                   of               a simi-
                                        character, I believe this was a case of Advisory Boardin its report, "Reducing
U.S. objections, the new seabed mining re-
gime will streamline the Authority and em-                                        lar conclusion
                                        bad judgment. My distinguished col- Risk."
phasize the need to ensure an efficient orga-
nization in keeping with the recognitionleague from Indiana, Senator LUGAR,
that commercial mining is not imminent.
                                        has raised several valid points about sition one could argue with the the re-
                                                                                         that we ought to allocate
  Mr. DURENBERGER. Mr. President, the judgment that Judge Breyer exer- sources we devote to risk reduction as
I understand that I may proceed as in cised with respect to this investment.      carefully as possible. And everyone
morning business.                         However, I have concluded that this would agree that decisions based on
  The PRESIDING OFFICER. The Sen- single error in judgment should not, in solid scientific information are usually
ator is correct.                        itself, preclude membership on the Su- better than decisions guided by hunch-
                                        preme Court. I do not think that a rea- es, superstition or bias.
                                        sonable measure of any person is the        However, we must often make deci-
NOMINATION OF STEPHEN BREYER worst mistake they ever made. Instead,
   TO THE U.S. SUPREME COURT                                                      sions before all the evidence is in. Con-
                                        I look at the entire record of accom- gress is constantly called upon to make
  Mr. DURENBERGER. Mr. President, plishment, his record of reasonable de- decisions that allocate billions of pub-
I rise in support of the nomination of cisions, his record of diligent work for lic and private dollars toward one prob-
Judge Stephen Breyer to the U.S. Su- justice, his temperament and his char- lem or another often before the science
preme Court.                            acter. By that measure, Stephen on causes and solutions is settled. We
  I have always taken very seriously Breyer is worthy of a seat on the Su- make difficult choices that are criti-
my responsibility as a Senator to ad- preme Court. That is why I will vote to cized from every direction.
vise and consent on presidential nomi- confirm this nominee.                        Judge Breyer proposes a new super-
nations. In my mind, my role is not to                                            agency with wide-ranging authority to
confirm only those nominees who agree                                             reallocate Government efforts as a so-
with me on political issues. I have JUDGE STEPHEN BREYER'S BOOK lution to these problems. But there is
never applied a litmus test on any sub-    "BREAKING THE VICIOUS CIR- no technical, scientific or bureaucratic
ject, such as abortion and the death       CLE: TOWARD EFFECTIVE RISK fix for our condition. There is no phi-
penalty for example, even though I         REDUCTION"                             losopher king or group of senior bu-
have strong convictions about both.        Mr. DURENBERGER. Mr. President, reaucrats who can relieve the Congress
  Regardless of the party in the White in 1993 Judge Breyer published a book of the difficult job of setting priorities
House, I have always asked three ques- with the title, "Breaking the Vicious in a world of competing interests and
tions to determine whether presi- Circle: Toward Effective Risk Reduc- limited knowledge. And there is no rea-
dential nominees deserve confirmation. tion." The central premise of his book son to believe that Congress has chosen
First, does the nominee have the expe- is that the efforts of the federal Gov- incorrectly in the past.
rience necessary to do the job? Second, ernment to reduce risks to public           A complete response to the concerns
does the nominee have the tempera- health and the environment are not that Judge Breyer raises in his book
18572                                    CONGRESSIONAL RECORD—SENATE                                               July 28, 1994
would fill many pages of the RECORD. I       Stephen Breyer to become an Associate      Mr. Hays, one of its reading clerks, an-
would make just two brief points,            Justice on the United States Supreme       nounced that the House disagrees to
today.                                       Court and I believe that President Clin-   the amendments of the Senate to the
  First, this is not a technical problem     ton has made a wise and timely choice      bill (H.R. 4426) making appropriations
that can be solved by appointing1 an         in choosing him for the upcoming va-       for foreign operations, export financ-
agency with broader powers and better        cancy on the Court.                        ing, and related programs for the fiscal
staff. Allocating budgets, imposing reg-       In stating my support for Judge          year ending September 30, 1995, and
ulatory costs, is an act of expressing       Breyer, I salute President Clinton for     agrees to the conference asked by the
values, and in a democracy we do it by       his primary role in making this nomi-      Senate on the disagreeing votes of the
voting.                                      nation. The President has had two op-      two Houses thereon; and appoints Mr.
  There is not one objective yardstick       portunities to fill vacancies on the Su-   OBEY, Mr. YATES, Mr. WILSON, Mr.
on which one can rank the relative im-       preme Court and he has made out-           OLVER, MS. PELOSI, Mr. TORRES, Mrs.
portance of all these competing objec-       standing choices in first nominating       LOWEY, Mr. SERRANO, Mr. SABO, Mr.
tives. How much do you spend on chil-        Ruth Bader Ginsburg last year and now      LIVINGSTON, Mr. PORTER, Mr. LIGHT-
dren' health, before you start spending      Stephen Breyer. His choices reflect        FOOT, Mr. CALLAHAN, and Mr. MCDADE
money to save endangered species?            moderation and respect for the Court's     as the managers of the conference on
This is a question of preferences that       role as the supreme arbiter of laws for
                                             all citizens in this country, regardless   the part of the House.
in our system of government is as-                                                        The message also announced that the
signed to elected members of the Con-        of political leanings and agendas. He
gress, not appointed members of              has likewise taken the lead in appoint-    House disagrees to the amendments of
science boards.                              ing similarly qualified and diverse can-   the Senate to the bill (H.R. 4649) mak-
  Second, even where one yardstick of        didates to the lower courts. The Presi-    ing appropriations for the government
risk can be applied, for instance the        dent deserves great credit for carrying    of the District of Columbia and other
risk of contracting fatal cancer, it does    out with such attention and care his       activities chargeable in whole or in
not necessarily follow that allocating       solemn duties with regard to appoint-      part against the revenues of said Dis-
resources to achieve the largest risk        ing members of the Judiciary.              trict for the fiscal year ending Septem-
reduction is an absolute guide to pol-         Specifically regarding Judge Breyer,     ber 30, 1995, and for other purposes, and
icy. I believe that the public is more       he has gone through a confirmation         agrees to the conference asked by the
willing to accept small risks widely         process which has been pleasantly har-     Senate on the disagreeing votes of the
distributed, than large risks focused on     monious, and bipartisan. He is much        two Houses thereon; and appoints Mr.
the few. It is not just the absolute mor-    praised for his intellect, moderation,     DIXON, Mr. STOKES, Mr. DURBIN, MS.
tality, but also the equity, the dis-        compassion, temperament, dedication        KAPTUR, Mr. SKAGGS, MS. PELOSI, Mr.
tribution of the risk, that informs the      to principle, respect for the law, and     OBEY, Mr. WALSH, Mr. ISTOOK, Mr.
public's sense of priorities.                his ability to forge consensus rather      BONILLA, and Mr. MCDADE as the man-
  The public gets incensed about haz-        than encourage division. I join in these   agers of the conference on the part of
ardous waste sites and leaking under-        assessments of his record. I am also       the House.
ground storage tanks because they are        confident that he will bring these
immediately devastating to their vic-        much-needed qualities to a Supreme
tims, even if those victims are few in       Court which has been subject to polar-            EXECUTIVE AND OTHER
number, and hundreds more could be           ization in recent years. A calm hand                 COMMUNICATIONS
saved by spending the same dollars           and a reasoned voice will be welcome         The following communications were
cleaning up indoor air quality. Allocat-     and if history is any guide, Judge         laid before the Senate, together with
ing public and private resources to          Breyer will provide just such an influ-    accompanying papers, reports, and doc-
achieve the greatest reduction in risk       ence.
                                                                                        uments, which were referred as indi-
for each dollar spent is not the best          Accordingly, I wholeheartedly sup-       cated:
public policy, because it fails to reflect   port the confirmation of Judge Breyer        EC-3119. A communication from the Sec-
the public's sense of equity and justice.    for the Supreme Court, congratulate        retary of Agriculture, transmitting, pursu-
How much an industry should be re-           him on the accomplishments of his ca-      ant to law, the report on the Forest Service
quired to spend to prevent its               reer, extend every good wish as he as-     for fiscal year 1993; to the Committee on Ag-
externalities from imposing unjustified      sumes the duties and responsibilities of   riculture, Nutrition, and Forestry.
costs on others is, unless one takes an      his post, and look forward to a long         EC-3120. A communication from the Sec-
absolutist view, a value-laden decision      and distinguished tenure for him on        retary of Housing and Urban Development,
that can only be made in the context of      the bench.                                 transmitting, pursuant to law, the report on
                                                                                        the status of multifamily housing; to the
our entire social experience.                                                           Committee on Banking, Housing, and Urban
  I am all for more science. And the          MESSAGES FROM THE PRESIDENT               Affairs.
Congress has a fundamental obligation          Messages from the President of the         EC-3121. A communication from the Gen-
to spend the taxpayers' money as wise-       United States were communicated to         eral Counsel of the Department of Com-
ly as possible. We often make mis-           the Senate by Mr. Thomas, one of his       merce, transmitting, a draft of proposed leg-
takes. But I do not agree that the anec-                                                islation entitled "The Marine Navigation
                                             secretaries.                               Trust Fund Act of 1994"; to the Committee
dotes cited in Judge Breyer's book call                                                 on Environment and Public Works.
into question either the process we                                                       EC-3122. A communication from the Sec-
have used to select environmental pri-       EXECUTIVE MESSAGES REFERRED                retary of Energy, transmitting, pursuant to
orities or the allocation of resources         As in executive session the Presiding    law, notice relative to the report entitled
now reflected in the budget and regula-      Officer laid before the Senate messages    "Adequacy of Management Plans for the Fu-
tions of EPA and the other agencies we       from the President of the United           ture Generation of Spent Nuclear Fuel and
charged to protect public health and         States submitting sundry nominations       High-Level Radioactive Waste"; to the Com-
the environment.                             which were referred to the appropriate     mittee on Environment and Public Works.
  Mr. PELL addressed the Chair.              committees.                                  EC-3123. A communication from the Direc-
  The PRESIDING OFFICER. The Sen-              (The nominations received today are      tor of the Office of Management and Budget,
                                                                                        Executive Office of the President, transmit-
ator from Rhode Island.                      printed at the end of the Senate pro-      ting, a draft of proposed legislation entitled
                                             ceedings.)                                 "The Advisory Committee Termination
    CONFIRMATION OF STEPHEN                                                             Act"; to the Committee on Governmental
BREYER TO THE SUPREME COURT            MESSAGES FROM THE HOUSE                            EC-3124. A communication from the Direc-
  Mr. PELL. Mr. President, I am       At 3:01 p.m., a message from the                  tor of Employee Benefits of the Farm Credit
pleased to support the nomination of House of Representatives, delivered by             Bank of Baltimore, Maryland, transmitting,

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