As it finished off its lame duck session last month, the Senate considered the economy, the judiciary, and the war on terror.
The Senate on November 19 passed a terrorism reinsurance bill in spite of Democratic provisions giving lawyers free rein to sue the victims of terrorism. The flawed bill passed despite the certainty that Republicans will control the Senate in January, but that the liability issue will likely be revisited then. President Bush wanted this bill to pass because it will create thousands of jobs-many building projects are currently stalled because of the impossibility of insuring them against terrorism.
The same day the Homeland Security bill also survived an attempt at alteration from the House version. Senate leaders managed to herd the bill through only by promising some liberal members that several controversial issues will be revisited when Congress returns.
Finally, also on the 19th, over liberal objections the Senate confirmed President Bushs nomination of Judge Dennis Shedd to the 4th Circuit Court of Appeals, the final nominee sponsored by retiring Sen. Strom Thurmond (R.-S.C). Democrats had threatened a filibuster against Shedd, but the threat fell flat in the end.
Senate Rejects Democratic Homeland Security Changes
On November 19, by a vote of 47 to 52, the Senate rejected a Democrat amendment that would have removed seven House-passed provisions from the Homeland Security Act (HR 5005). Three liberal Republicans-Olympia Snowe (Maine), Susan Collins (Maine) and Lincoln Chafee (R.I.)-threatened to defy their leadership and vote for the Democratic amendment if the special interest provisions were not removed, which could have delayed creation of a new Homeland Security Department until next year.
But after negotiating with Minority Leader Trent Lott (R.-Miss.) they received assurances from him and from House leaders responsible for allowing the provisions into the bill that they would be revisited in the 108th Congress. The angry Republicans then went along with their party and voted against the Democratic amendment.
Of the seven provisions, three in particular were of the greatest concern to opponents: one that would end all pending lawsuits against drug companies accused of making mercury-based vaccine additives suspected of causing autism in children; another that would give the homeland security secretary the ability to ignore the ban on issuing government contracts to corporations that move abroad to avoid paying taxes, and a final provision that established a homeland security research institute that favored Texas A&M University.
"I was so enraged these provisions found their way into the legislation, "said Sen. Snowe. "I just felt it could not stand." Sen. Debbie Stabenow (D.-Mich.) agreed, arguing that "this special treatment for drug manufacturers is an issue that merits open public debate and full consideration by Congress."
"Weve heard promises like that before. And I have to say, if [the provisions] are so bad, why didnt they take them out now," said Sen. Tom Daschle (D.-S.D.). "We are not going to give up. Well come back next year."
Several Democrats voted with Republicans against the amendment, arguing that they did not want to risk not having a homeland security department before adjourning. "I did not want to risk not having a homeland security bill," said Sen. Dean Barkley (I.-Minn.), defending his vote against the amendment.
Other provisions the amendment would have killed limit the lawsuits that can be filed against airport screening companies and makers of anti-terrorism technology, and allow a committee composed of representatives from various agencies to veto emergency regulations issued by the Transportation Security Administration (TSA).
A "yes" vote was a vote for a Democratic amendment to strip several provisions from the Homeland Security bill passed by the House. A "no" vote was a vote to retain the provisions.
REPUBLICANS FOR (1): McCain.
DEMOCRATS FOR (46): Akaka, Baucus, Bayh, Biden, Bingaman, Boxer, Breaux, Byrd, Cantwell, Carnahan, Carper, Cleland, Clinton, Conrad, Corzine, Daschle, Dayton, Dodd, Dorgan, Durbin, Edwards, Feingold, Feinstein, Graham (Fla.), Harkin, Hollings, Inouye, Jeffords, Johnson, Kerry, Kohl, Leahy, Levin, Lieberman, Lincoln, Mikulski, Murray, Nelson (Fla.), Reed (R.I.), Reid (Nev.), Rockefeller, Sarbanes, Schumer, Stabenow, Torricelli, Wyden.
REPUBLICANS AGAINST (48): Allard, Allen, Bennett, Bond, Brownback, Bunning, Burns, Campbell, Chafee, Cochran, Collins, Craig, Crapo, DeWine, Domenici, Ensign, Enzi, Fitzgerald, Frist, Gramm (Tex.), Grassley, Gregg, Hagel, Hatch, Helms, Hutchinson (Ark.), Hutchison (Tex.), Inhofe, Kyl, Lott, Lugar, McConnell, Murkowski, Nickles, Roberts, Santorum, Sessions, Shelby, Smith (Ore.), Smith (N.H.), Snowe, Specter, Stevens, Thomas, Thompson, Thurmond, Voinovich and Warner.
DEMOCRATS AGAINST (3): Landrieu, Miller and Nelson (Neb.).
INDEPENDENTS AGAINST (1): Barkley.
NOT VOTING (1): Kennedy.
Senate Confirms Bush Nominee To Circuit Court
On November 19, by a vote of 55 to 44, the Senate confirmed President Bushs nomination of U.S. District Court Judge Dennis W. Shedd from South Carolina to be judge on the United States 4th Circuit Court of Appeals. He was confirmed over strong Democratic opposition because of what they charged was a poor record on civil liberties, race and gender discrimination, but Shedd backers said the liberals objected to his likely pro-life stance.
"He has not shown the commitment to the protection and vindication of federal rights that is essential for this high position in the judiciary," said Sen. Edward Kennedy (D-Mass.) of Judge Shedds nomination to the 4th Circuit. "He has an unacceptable record in cases involving race and gender discrimination." Kennedy then expressed his concern for the people within the 4th Circuit jurisdiction, saying that they "have a large minority population, the highest percentage of African-Africans of any circuit in the country, and they deserve a fair judiciary, committed to protecting basic rights."
Sen. Patty Murray (D.- Wash.) also opposed the confirmation. Judicial candidates, she said, should be "committed to upholding the rights and liberties of all Americans," implying that Shedd is a racist or sexist or both. She said that Judge Dennis Shedds "willingness to inject his own personal bias about the rights of individuals shows he also lacks the requisite judicial temperament we should require in a federal judge."
Others joined in Murrays demagoguery. "While Judge Shedds record provides numerous reasons to oppose his confirmation, I am most troubled by his poor record on civil rights, where he has demonstrated an alarming propensity for putting his personal views above the law," said Sen. John Edwards (D.- N.C.).
Sen. Carl Levin (D.-Mich.) disparaged Shedd as a believer in the 10th Amendment of the Constitution, referring to his "extreme view on the limits of congressional authority and his record of hostility to plaintiffs in civil rights and employment discrimination cases. . . . This combination is extremely dangerous given the critical role that Congress plays in passing laws to ensure that constitutional protections are afforded to all Americans."
Sen. John Kerry (D.-Mass.) voiced strong opposition to the nomination as well. "I do not believe we can place our trust in Judge Shedd to protect the civil liberties of Americans of all races and beliefs have fought so hard to win," he said.
Sen. Strom Thurmond (R-S.C.), for whom Shedd had once served as a staffer on the Senate Judiciary Committee, supported his nomination, calling Shedd "a man of great character who will make an outstanding addition to the federal appellate bench. He possesses the highest sense of integrity, a thorough knowledge of the law, and a good judicial temperament." Several letters to the Senate from South Carolina law firms also supported the nomination of Judge Shedd calling him, "courteous and fair," an "exceptional nominee," and a man of "strong character while on the bench."
In a letter to the committee, Luonne Abram Rouse, former president of the NAACP chapter in South Carolina, supported the Shedd nomination by recounting his personal experiences with the judge. "Dennis will represent equality and justice for women and all ethnicitys in America with devotion to oath he has taken," wrote Rouse. "I do not believe that he will forsake the law with favoritism for economic giants or big business."
A "yes" vote was a vote for President Bushs nomination of Judge Dennis Shedd to sit on the 4th Circuit Court of Appeals. A "no" vote was a vote against the nomination.
REPUBLICANS FOR (48): Allard, Allen, Bennett, Bond, Brownback, Bunning, Burns, Campbell, Chafee, Cochran, Collins, Craig, Crapo, DeWine, Domenici, Ensign, Enzi, Fitzgerald, Frist, Gramm (Tex.), Grassley, Gregg, Hagel, Hatch, Helms, Hutchinson (Ark.), Hutchison (Tex.), Inhofe, Kyl, Lott, Lugar, McCain, McConnell, Nickles, Roberts, Santorum, Sessions, Shelby, Smith (N.H.), Smith (Ore.), Snowe, Specter, Stevens, Thomas, Thompson, Thurmond, Voinovich and Warner.
DEMOCRATS FOR (7): Byrd, Graham, Hollings, Inouye, Lincoln, Miller and Nelson (Neb.).
DEMOCRATS AGAINST (43): Akaka, Baucus, Bayh, Biden, Bingaman, Boxer, Breaux, Cantwell, Carnahan, Carper, Cleland, Clinton, Conrad, Corzine, Daschle, Dayton, Dodd, Dorgan, Durbin, Edwards, Feingold, Feinstein, Harkin, Jeffords, Johnson, Kennedy, Kerry, Kohl, Landrieu, Leahy, Levin, Lieberman, Mikulski, Murray, Nelson (Fla.), Reed, Reid, Rockefeller, Sarbanes, Schumer, Stabenow, Torricelli and Wyden.
INDEPENDENTS AGAINST (1): Barkley.
NOT VOTING (1): Murkowski.
Senate Easily Invokes Cloture On Terrorism Bill
On November 19, by a vote of 85 to 12, the Senate voted to invoke cloture so that members could vote on the Terrorism Risk Insurance Act of 2002 (HR 3210) that President Bush badly wanted passed before the 107th Congress adjourned. The bill, which was quickly signed by the President after passing both houses, reinsures insurance companies that offer policies against acts of terror.
House Republicans had tried to close a loophole in the new law-created by trial-lawyer-friendly Democrats-that exposes businesses to litigation in the event that they become victims of a terrorist attack. Ultimately, President Bush considered that bill itself a high enough priority that he forced the House and Senate Republicans to compromise on liability protection in conference. This brought about strong opposition from several senators during debate and it is expected that Congress will revisit the issue next year.
Several senators saw the weakened protection coverage as a potential fiscal burden for American taxpayers. "The conference report before us fails to provide reasonable restrictions on lawsuit liability," said Sen. Chuck Grassley (R.-Iowa). "Instead [it] exposes the American taxpayer to potentially excessive costs of unmitigated litigation as a result of terrorist attacks."
Sen. Phil Gramm (R.-Tex.) agreed, opposing final passage. "The bill still retains the provision that will produce punitive damage judgments against victims of terrorism," he said. "In my mind, that is licensing piracy on hospital ships." Both senators maintained that the legislation would not adequately protect business owners in the event of a terrorist attack and as a result taxpayers would absorb the excessive costs of unrestricted litigation.
"We have not addressed the issue in a prudent and responsible manner that provides the appropriate stability to our economy without exposing our taxpayers to an unreasonable financial burden," said Sen. Orrin Hatch (R.-Utah). "In this legislation, we have failed to provide elements that are necessary to the businesses that are themselves the victims of the terrorist attacks."
Sen. Tom Harkin (D.-Iowa), a supporter of the lawyer bonanza in the bill, disagreed. "American victims of state-sponsored terrorism deserve and want to be compensated for their losses," he said. "Congress should clear the way for them to get some satisfaction of court-ordered judgments and, in so doing, help deter future acts of state-sponsored terrorism against innocent Americans."
Opponents pointed out that earlier the Presidents economic advisors had written to Minority Leader Trent Lott that "the victims of terrorism should not have to pay punitive damages. Punitive damages are designed to punish criminal or near-criminal wrongdoing. The availability of punitive damages in terrorism cases would result in inequitable relief for injured parties, threaten bankruptcies for American companies and a loss of jobs for American workers. Nonetheless, most Republicans yielded to the Presidents desire to have some legislation, however imperfect.
A "yes" vote on cloture was a vote to end debate on the terrorism insurance bill and to proceed to a vote on passage. A "no" vote was a vote to continue to debate and was, in effect, a vote against the terrorism insurance bill because it contained no liability caps.
REPUBLICANS FOR (34): Allard, Allen, Bennett, Bond, Brownback, Bunning, Burns, Campbell, Chafee, Cochran, Collins, Crapo, DeWine, Domenici, Fitzgerald, Frist, Gregg, Hagel, Hatch, Inhofe, Lott, Lugar, McCain, McConnell, Roberts, Smith (N.H.), Smith (Ore.), Snowe, Specter, Stevens, Thompson, Thurmond, Voinovich and Warner.
DEMOCRATS FOR (50): Akaka, Baucus, Bayh, Biden, Bingaman, Boxer, Breaux, Byrd, Cantwell, Carnahan, Carper, Cleland, Clinton, Conrad, Corzine, Daschle, Dayton, Dodd, Dorgan, Durbin, Edwards, Feingold, Feinstein, Graham (Fla.), Harkin, Hollings, Inouye, Jeffords, Johnson, Kennedy, Kerry, Kohl, Landrieu, Leahy, Levin, Lieberman, Lincoln, Mikulski, Miller, Murray, Nelson (Neb.), Nelson (Fla.), Reed (R.I.), Reid (Nev.), Rockefeller, Sarbanes, Schumer, Stabenow, Torricelli and Wyden.
INDEPENDENT FOR (1): Barkley.
REPUBLICANS AGAINST (12): Craig, Ensign, Enzi, Gramm, Grassley, Hutchison (Tex.), Kyl, Nickles, Santorum, Sessions, Shelby and Thomas.
NOT VOTING (3): Helms, Hutchinson (Ark.) and Murkowski.