Executive Session
Floor Speech
Mr. CORNYN. Mr. President, in the aftermath of the battle over the continuing resolution and the debt ceiling, I am sure I am not alone in hearing from my constituents they are hoping that Democrats and Republicans can now work together on some of the most important and chronic problems that challenge our country. But instead of doing that, my friends across the aisle have taken this opportunity to engage in what can only be described as a power grab that will result in even more polarization and partisan acrimony here in Washington.
What I am talking about specifically is the effort of the President and Democratic leadership to pack the District of Columbia Court of Appeals. For those who may not follow the Federal court system, America has 13 different Federal appellate courts, but the DC court stands out as the most powerful in the country. Some have called it the second most important court in the Nation because it has jurisdiction over a variety of regulatory and constitutional matters. Whether it relates to Dodd-Frank in financial services, to ObamaCare and its implementation, or to national security matters, all of those types of cases get heard in the DC Circuit Court. No other appellate court in the Nation wields such vast influence over hot-button issues, ranging, as I said, from health care to the Environmental Protection Agency and its activities, which I know are as important to the Presiding Officer as they are to me, as well as gun rights and the war on terrorism.
President Obama argues the DC Circuit Court needs three more judges in order to get its work done, but the facts simply don't bear that out. That is not true. For example, between 2005 and 2013, the DC Circuit's total number of written decisions per active judge actually went down by 27 percent. The number of appeals filed with the court fell by 18 percent. So instead of having more work to do, it has less work to do than it did in 2005.
As one commentator has observed: The DC Circuit already has the lowest caseload in the Nation and, if anything, trends show their workload is decreasing--decreasing, going down--not up.
Indeed, one DC Circuit Court judge recently told the senior Senator from Iowa that if any more judges were added now, there wouldn't be enough work to go around. So one might wonder why then the President and Senator Reid would want to pack the DC Circuit Court with three additional judges if there is not enough work to go around today.
Let me also note the DC Circuit Court has a unique record in that it actually took 4 months off between May and September of this year. That is hardly the record of a court that has too much work to do and simply can't get it done.
Meanwhile, there are courts across our country, both appellate courts and district courts, that are overburdened. Some of these courts are labeled as judicial emergencies because they simply have such a heavy caseload they can't get the work done. Why wouldn't we want to allocate more judicial resources, more help, to those courts that need the help rather than to pack the DC Circuit Court with judges it simply doesn't need?
Don't just take my word for it. Prominent Democratic leaders have actually made no secret of what is happening here. One might wonder what the rationale is, if there is not enough work to do. Why would Senator Reid and other Democratic leaders want to add new judges to a court that doesn't have enough work to do? Well, back in March, the senior Senator from New York, Senator Schumer, said the following of the DC circuit judges:
Here's what they have done in the last year: They have overturned the EPA's ability to regulate existing coal plants ..... They have rendered the SEC impotent by saying that the SEC can't pass rulings unless they do what is called a cost-benefit analysis ..... They have ruled that recess appointments couldn't be taken into account.
Senator Schumer also said:
We will fill up the DC circuit one way or another.
Well, I disagree with Senator Schumer's characterization on some of these cases, but it is true the DC Circuit Court has a unique role in American jurisprudence in deciding some very important cases for the entire country. There are administrative agencies that are part of the executive branch, and when they make decisions--whether it relates to financial services, the Environmental Protection Agency, Health and Human Services, or any administrative agency--those decisions typically get decided and reviewed by the DC Circuit Court of Appeals.
More recently, the majority leader put it this way when he said:
We're focusing very intently on the DC Circuit. We need at least one more. There's three vacancies. We need at least one more and that will switch the majority.
So this isn't about the efficient administration of impartial justice. This is about stacking the court by changing the majority. That was a quote from the majority leader of the Senate. So there is no mystery about what is going on here. The majority leader and his allies are attempting to pack the court with judges who will rubberstamp their big-government agenda.
The majority leader is also threatening to use the nuclear option again unless Senate Republicans simply snap to attention and salute smartly. Well, that is not going to happen. In simple terms, Democrats are prepared to violate the Senate's own rules to help flip the DC circuit in favor of the Obama administration's aggressive administrative overreach. If these tactics succeed, the Senate will be weakened as an institution and the Nation's second highest court will be transformed into a far-left ideological body.
But I will remind my colleagues that what goes around comes around in the Senate. When Republicans control the Senate and we have a Republican in the White House, I warn my colleagues the same rules they put into effect with the nuclear option will be used to their disadvantage then. We shouldn't do it. We shouldn't go there.
But it is clear what the motivation is. Again, this is not about the efficient administration of impartial justice. This is about getting your way and getting a rubberstamp on the actions of regulatory overreach that are far too common here in Washington, DC.
It is true the DC Circuit Court has ruled against the Obama administration and its regulatory agencies, but it is also true they have affirmed many of the most important and far-reaching decisions of the Obama administration's regulatory agencies. One example where it ruled against the administration is in 2011, when it struck down the ``proxy access'' rule of the Securities and Exchange Commission by declaring the agency failed to conduct a cost-benefit analysis required by law before adopting the regulation.
I don't know about anyone else, but I wish the government would do more cost-benefit analyses, not less, and so I am glad the DC Circuit Court struck down that rule because of the failure of the Securities and Exchange Commission to conduct a cost-benefit analysis.
In another example last year, the court vacated the cross-State air pollution rule of the Environmental Protection Agency, noting it would ``impose massive emissions reduction requirements'' on certain States ``without regard to the limits set by the statutory text.''
In other words, they acted beyond their congressional authorization. This was also an example, in Texas--Texas got swept into this cross-State air pollution rule without even an opportunity to be heard and to offer competing analyses of the models the Environmental Protection Agency used. No matter how committed we all are to clean air, we should not sanction an administrative agency run amok, doing what is not authorized by the statutory text.
The DC Circuit has also rejected as unconstitutional a pair of appointments the President made to the National Labor Relations Board. Talk about overreach. This is where the President tried to trump the confirmation powers of the U.S. Senate in the Constitution--the power of advice and consent, it is called--by making unconstitutional so-called recess appointments. The DC Circuit called him on it and held that it was unconstitutional.
More recently, the court held that the President's Nuclear Regulatory Commission was simply flouting the law. Do we not want a court to call the President when administrative agencies are simply flouting the law if we are a nation of laws? In this case, they flouted the law by delaying a decision on whether to use Yucca Mountain as a nuclear waste repository.
These were all commonsense decisions, and you can probably tell from my comments that I think they were well grounded in the law and the facts and I agree with the decision. In that case, they all went against the Obama administration's preferred position, but it is true that the DC Circuit has also ruled in favor of the administration's position in a number of cases. Again, here is an EPA decision. Since 2012, Jeremy Jacobs reports, the Agency has won 60 percent of the cases that have been reviewed by the DC Circuit Court of Appeals. In 60 percent of the lawsuits where the Environmental Protection Agency has been taken to court for exceeding its authority, 60 percent of the time the EPA position has prevailed. That is a better performance than the EPA had at the circuit during George W. Bush's administration. In particular, the EPA has scored landmark victories related to greenhouse gas regulations, ethanol-blended gasoline, and mountaintop-removal coal mining. But beyond energy and environmental issues, the DC Circuit Court has upheld President Obama's Executive order regarding embryonic stem cell research on two separate occasions, in 2011 and 2012.
Again, these are not my preferred outcomes, but I think they demonstrate that the DC Circuit Court has learned to strike a balance and certainly is not pro-administration or anti-administration. It epitomizes what a court should be, which is an impartial administrator of justice. Again, this same court upheld the Affordable Care Act in 2011, ruling that the individual health insurance mandate was constitutional under the commerce clause. We know what happened when it got to the U.S. Supreme Court. They had a different view.
It demonstrates the kind of judicial restraint that the current DC court, balanced as it is with four nominees by a Republican President and four nominees by a Democratic President--how it has administered evenhanded justice, which would be destroyed if the President is successful and if Senator Reid is successful in packing this court with three more of their liberal allies. As I said, this court is currently split right down the middle. Four of the active judges were appointed by a Republican President and four were appointed by a Democratic President. Yet it is clear that the DC Circuit Court is in the crosshairs of the majority leader and his Democratic allies, including the President, because they want to tilt the court in their direction--a more liberal, bigger government direction, one that is more deferential to administrative agencies, such as the Environmental Protection Agency and other agencies that refuse to take into account a cost-benefit analysis, which we ought to have more of, not less.
The truth is that there is an answer to this standoff in terms of the court-packing President Obama and Senator Reid are attempting. There actually is a way to reallocate these unneeded seats from the DC Circuit Court of Appeals to other courts that actually need the judges, unlike this court that has the lightest caseload of any circuit court in the Nation.
Senator Grassley, the senior Senator from Iowa, has offered a reasonable compromise which would allow several of President Obama's appellate nominees to be approved for district courts or courts of appeals where they are actually needed. In other words, President Obama would still get to pick them; he would just have to pick them for courts where they would actually have enough work to do and where they are needed.
Again, based on current caseloads, the DC Circuit Court does not need new judges, but other appellate courts really do. I would think that during a time when judgeships are constrained after the Budget Control Act, when discretionary spending is down, and when the courts need more resources allocated, we would want to allocate the resources to courts and to jurisdictions where they are actually needed, not to places where they are not needed.
For all these reasons and more, I hope Members of both parties will agree that the reasonable way to do it would be to pass the Grassley bill, the Grassley compromise to reallocate these judges to the places where they are really needed and to prevent the stacking of this court and this reckless power grab.
I yield the floor.
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