Executive Session

Floor Speech

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Mr. GRASSLEY. Mr. President, we didn't have a chance to debate the change in rules, and we should have, so I am going to speak now on some things I think should have been said before we voted--not that it would have changed the outcome but because we ought to have known what we were doing before we vote rather than afterward. So I will spend a few minutes discussing what the majority leader did on the so-called nuclear option.

Unfortunately, this wasn't a new threat. Over the last several years, every time the minority has chosen to exercise his rights under the Senate rules, the majority has threatened to change the rules. In fact, this is the third time in just the last year or so that the majority leader has said that if he didn't get his way on nominations, he would change the rules. Ironically, that is about as many judicial nominees as our side has stopped through a filibuster--three or so.

Prior to the recent attempt by the President to simultaneously add three judges who are not needed to the DC Circuit, Republicans had stopped a grand total of 2 of President Obama's judicial nominees--not 10, as the Democrats had by President Bush's fifth year in office; not 34, as one of my colleagues tried to suggest earlier this week; no, only 2 had been stopped. If we include the nominees for the DC Circuit, we have stopped a grand total of 5--again, not 10, as the Democrats did in 2005; not 34, as one of my colleagues tried to argue earlier this week but 5. During that same time we have confirmed 209 lower court Article III judges. That is a record of 209 judges approved to 5 who were not approved. So this threat isn't based on any crisis. There is no crisis.

I would note that today's Wall Street Journal editorial entitled ``DC Circuit Breakers: The White House wants to pack a court whose judges are underworked'' lays out the caseload pretty clearly.

I ask unanimous consent to have printed in the Record the editorial to which I just referred.

There being no objection, the material was ordered to be printed in the Record, as follows:

[From the Wall Street Journal, Nov. 21, 2013]

D.C. Circuit Breakers
(By the Wall Street Journal Editorial Staff)

The White House wants to pack a court whose judges are underworked.

We remember when a ``judicial emergency'' was the Senate's way of calling attention to vacancies based on a court's caseload. Those were the good old days. Now Democrats are threatening to change Senate rules if Republicans don't acquiesce to their plan to confirm three new judges to the most underworked appellate circuit in the country.

That's the story behind the fight over the D.C. Circuit Court of Appeals, with the White House trying to pack the court that reviews much of its regulatory agenda. On Monday Senate Republicans blocked the third nominee to the D.C. appellate court in recent weeks, and Democrats with short memories of their judicial filibusters in the Bush years are claiming this is unprecedented. Majority Leader Harry Reid and other Democrats are threatening to resort to the so-called nuclear option, which would let the Senate confirm judicial nominees by a simple majority vote.

This is nothing but a political power play because the D.C. Circuit doesn't need the new judges. It currently has 11 authorized judgeships and eight active judges--four appointed by Democratic Presidents and four by Republicans. The court also has six senior judges who hear cases varying from 25% to 75% of an active judge's caseload. Together they carry the equivalent caseload of 3.25 active judges, according to numbers from Chief Judge Merrick Garland. That means the circuit has the equivalent of 11.25 full-time judges.

That's more than enough considering that the court's caseload is the lightest in the country. For the 12-months ending in September, the D.C. Circuit had 149 appeals filed per active judge. By comparison, the 11th Circuit had 778 appeals filed per active judge for the same period. If all three nominees to the D.C. Circuit were confirmed, the number of appeals per active judge would be 108, while a full slate on the 11th Circuit would be 583 appeals per judge. The national average of appeals per active judge is 383. The closest to the D.C. Circuit is the 10th Circuit, at 217 appeals.

Liberal Senator Pat Leahy claims that these comparisons don't matter because the D.C. Circuit handles complex rulemakings by federal agencies and sensitive national security cases. But the truth is that all the circuits handle complicated cases. And even many regulatory cases have been migrating to other circuits as some of the D.C. Circuit's stars have taken senior status.

According to the Administrative Office of the U.S. Courts, 42.9% of the D.C. Circuit's caseload is made up of administrative appeals of federal rules or regulations, the highest percentage of any circuit. In raw numbers, the D.C. Circuit is not carrying the heaviest load. That honor goes to the Second Circuit Court of Appeals.

Democrats are in a rush to confirm as many judges as possible because they know the clock is ticking on the Obama second term. Liberals have criticized the White House for its slow pace of nominations, but that isn't the fault of Republicans. Iowa Senator Chuck Grassley, the ranking Republican on Judiciary who has led the fight against more D.C. Circuit confirmations, has been entirely consistent. In the Bush years he opposed the nomination of a twelfth judge for the court on workload grounds.

GOP Senators watched for years as Senate Democrats blocked George W. Bush's nominees to the D.C. Circuit, including the eminently qualified Miguel Estrada and Peter Keisler. Republicans are right to say that the D.C. Circuit now has a full complement of judges following the unanimous confirmation of Obama nominee Sri Srinivasan in May.

Mr. Reid and his fellow Democrats are claiming that even if they establish a new standard of 51 votes to confirm appellate judges and executive-branch officials, they can keep the 60 vote standard for the Supreme Court. They're kidding themselves. If they change the rules to pack the D.C. Circuit, Democrats should understand they are also setting that standard for future Supreme Court nominees opposed to Roe v. Wade.

Mr. GRASSLEY. This is about a naked power grab and nothing more than a power grab. This is about the other side not getting everything they want, when they want it.

The other side claims they were pushed to this point because our side objected to the President's plan to fill the DC Circuit with judges the court does not need, but the other side tends to forget history. History is something we ought to learn from, so let's review how we got here.

After the President simultaneously nominated three nominees who are not needed for the DC Circuit--a blatant political power grab in its own right--what did the Republicans do? Well, we did something quite simple: We said we want to go by the rules the Democrats set in 2006. We said we would hold those Democrats to the same standard they established in 2006 when they blocked a nominee of President Bush's by the name of Peter Keisler.

Let's be clear about why the Democrats are outraged. Democrats are outraged because Republicans actually had the temerity to hold the other political party to a standard they established, and because we did, because we insisted we all play by the same rules, they came right back and said: Then we will change the rules. In effect, the other side has said: We don't want to be held to the standard we established in 2006. And not only that, but if you don't give us what we want, we are willing to forever change the Senate. And that is what happened today.

We hear a lot of ultimatums around here, but this ultimatum was not run-of-the-mill. It was very different. It was different because this threat was designed to hold the Senate hostage. It was different because it is designed to hold hostage all of the Senate's history and traditions and precedents. It was different because its effectiveness depends on the good will of Senators who don't want to see the Senate as we know it destroyed or function other than as the constitutional writers intended.

I would note that today's majority didn't always feel that way--the very way we have seen expressed today. Not too many years ago my colleagues on the other side described their fight to preserve the filibuster with great pride. For instance, in 2006 one of my colleagues on the other side said:

The nuclear option was the most important issue I have worked on in my public life. Its rejection was my proudest moment as a minority leader. I emerged from the episode with a renewed appreciation for the majesty of Senate rules. As majority leader, I intend to run the Senate with respect for the rules and for the minority rights the rules protect.

In 2005 another of my Democratic colleagues had this to say, referring to when Republicans were in the majority:

Today, Republicans are threatening to take away one of the few remaining checks on the power of the executive branch by their use of what has become known as the nuclear option. This assault on our traditions of checks and balances and on the protection of minority rights in the Senate and in our democracy should be abandoned.

Eliminating the filibuster by nuclear option would destroy the Constitution's design of the Senate as an effective check on the executive.

So here we have two quotes from Democrats in the 2005-2006 timeframe very strongly supporting the precedent of the Senate in using the filibuster to protect minority rights. But that was when they were in the minority. Now they are in the majority, and the tradition of the Senate doesn't mean much.

Here is another quote from the late Senator Byrd in 2005:

And I detest this mention of a nuclear option, the constitutional option. There is nothing constitutional about it. Nothing.

But, of course, that was way back then--just 6, 7 years ago when today's majority was in the minority and there was a Republican in the White House. Today the shoe is on the other foot. Today the other side is willing to forever change the Senate because Republicans have the audacity to hold them--the majority party of today--to their own standard. Why? Why would the other side do this? There clearly isn't a crisis on the DC Circuit. The judges themselves say that if we confirm any more judges, there won't be enough work to go around. And it is not as if all of these nominees are mainstream consensus picks despite what the other side would have us believe, that they are somewhat mainstream.

Take Professor Pillard, for instance. She has written this about motherhood:

Reproductive rights, including rights to contraception and abortion, play a central role in freeing women from historically routine conscription into maternity.

Is that mainstream?

She has also argued this about motherhood:

Antiabortion laws and other restraints on reproductive freedom not only enforce women's incubation of unwanted pregnancies, but also prescribe a ``vision of the woman's role'' as mother and caretaker of children in a way that is at odds with equal protection.

Is that mainstream?

What about her views on religious freedom? She argued that the Supreme Court's case of Hosanna-Tabor Evangelical Lutheran Church, which challenged the so-called ``ministerial exception'' to employment discrimination, represented a ``substantial threat to the American rule of law.'' Now, get this. After she said that, the Supreme Court rejected her view 9 to 0, and the Court held that ``it is impermissible for the government to contradict a church's determination of who can act as its ministers.''

Do my colleagues really believe mainstream America thinks churches shouldn't be allowed to choose their own ministers?

I could go on and on, but I hope my colleagues get the picture.

The point is this: Voting to change the Senate rules is voting to remove one of the last meaningful checks on the President--any President--and voting to put these views on this important court.

So I ask again, why would the other side do this? It is nothing short of a complete and total power grab. It is the type of thing we have seen again and again out of this administration and their Senate allies, and you can sum it up this way: Do whatever it takes.

You can't get ObamaCare passed with Republican support? Do whatever it takes: Pass it at 7 a.m. on Christmas Eve with just Democratic votes.

You can't get all of your side to support ObamaCare? Do whatever it takes: Resort to things like the `Cornhusker kickback.''

You lose your 60th vote on ObamaCare due to a special election? Do whatever it takes: Ram it through anyway using reconciliation.

The American people don't want to be taxed for not buying health care? Do whatever it takes: Tell the American people it isn't a tax and then argue in the court that it is a tax.

The American people want to keep their health care? Do whatever it takes: Promise them ``if you like your health care, you can keep it'' and then issue regulations making it impossible.

Your labor allies want out from under ObamaCare? Do whatever it takes: Consider issuing them--labor--a waiver from the reinsurance tax.

You can't find consensus nominees for the National Labor Relations Board? Do whatever it takes: Recess-appoint them when the Senate is still in session.

You can't convince Congress to adopt your gun control agenda? Do whatever it takes: Issue some Executive orders.

You can't convince moderate Democrats to support cap-and-trade fee increases? Well, do whatever it takes: Do the same thing through EPA regulation.

Frustrated that conservative groups' political speech is protected under the First Amendment? Do whatever it takes: Use the IRS to harass and intimidate those same conservative groups.

Frustrated when the court stands up for religious freedom and issues a check on the ObamaCare contraception mandate? Do whatever it takes: Stack the DC Circuit Court in your favor.

Frustrated when the court curbs your power on recess appointments? Do whatever it takes: Stack the DC Circuit with your favorite appointees--people who will rule in your favor.

Worried EPA's regulations on cap-and-trade fee increases might get challenged in the court? Do whatever it takes: Stack the DC Circuit in your favor.

Frustrated because Senate Republicans have the nerve to hold you to the same standard you established during the last administration? Do whatever it takes: Change the rules of the Senate.

That is what we have witnessed today, nothing but an absolute power grab.

The majority in the Senate and their allies in the administration are willing to do whatever it takes to achieve their partisan agenda. They know there will be additional challenges to ObamaCare. They know that if they can stack the deck on the DC Circuit they can remove one of the last remaining checks on Presidential power.

But make no mistake, my friends on the other side will have to answer this question: Why did you choose this moment to break the rules to change the rules? Why now? Why, when we are witnessing the collapse of this massive effort to centrally plan one-sixth of this wonderful Nation's economy--why, when millions of Americans are losing their health care--why did you choose this moment to hand the keys to the kingdom over to the President, a President with less check on his authority?

Because the fact of the matter is this: any vote to break the rules to change the rules is a vote to ensure ObamaCare remains intact.

I will conclude by saying this. Changing the rules of the Senate in this way was a mistake. But if the last several years have taught us anything, it is that the majority won't stop making these demands. We can't always give in to these constant threats. Sooner or later you have to stand up and say: Enough is enough.

But if there is one thing which will always be true, it is this: Majorities are fickle. Majorities are fleeting. Here today, gone tomorrow. That is a lesson that, sadly, most of my colleagues on the other side of the aisle haven't learned for the simple reason that they have never served a single day in the minority.

So the majority has chosen to take us down this path. The silver lining is that there will come a day when roles are reversed. When that happens, our side will likely nominate and confirm lower court and Supreme Court nominees with 51 votes, regardless of whether the Democrats actually buy into this fanciful notion that they can demolish the filibuster on lower court nominees and still preserve it for Supreme Court nominees.

I yield the floor.

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