[Congressional Record Volume 159, Number 152 (Tuesday, October 29, 2013)]
[Senate]
[Pages S7595-S7598]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                             Cloture Motion

  The PRESIDING OFFICER. Under the previous order, the cloture motion 
having been presented under rule XXII, the Chair directs the clerk to 
read the motion.
  The legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     hereby move to bring to a close debate on the nomination of 
     Richard F. Griffin, Jr., of the District of Columbia, to be 
     General Counsel of the National Labor Relations Board.
         Harry Reid, Brian Schatz, Barbara Boxer, Carl Levin, Bill 
           Nelson, Jeff Merkley, Robert P. Casey, Jr., Debbie 
           Stabenow, Mark R. Warner, Tammy Baldwin, Jeanne 
           Shaheen, Kirsten E. Gillibrand, Mark Udall, Tom Udall, 
           Michael F. Bennet, Amy Klobuchar, Elizabeth Warren, Ron 
           Wyden.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of the Senate that debate on the 
nomination of Richard F. Griffin, Jr., of the District of Columbia to 
be General Counsel of the National Labor Relations Board shall be 
brought to a close?
  The yeas and nays are mandatory under the rule.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. CORNYN. The following Senator is necessarily absent: the Senator 
from Oklahoma (Mr. Inhofe).
  The PRESIDING OFFICER (Mr. Manchin). Are there any other Senators in 
the Chamber desiring to vote?
  The yeas and nays resulted--yeas 62, nays 37, as follows:

                      [Rollcall Vote No. 221 Ex.]

                                YEAS--62

     Alexander
     Ayotte
     Baldwin
     Baucus
     Begich
     Bennet
     Blumenthal
     Blunt
     Boxer
     Brown
     Cantwell
     Cardin
     Carper
     Casey
     Collins
     Coons
     Corker
     Donnelly
     Durbin
     Feinstein
     Flake
     Franken
     Gillibrand
     Hagan
     Harkin
     Heinrich
     Heitkamp
     Hirono
     Johnson (SD)
     Kaine
     King
     Klobuchar
     Landrieu
     Leahy
     Levin
     Manchin
     Markey
     McCain
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murphy
     Murray
     Nelson
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schatz
     Schumer
     Shaheen
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Warner
     Warren
     Whitehouse
     Wyden

                                NAYS--37

     Barrasso
     Boozman
     Burr
     Chambliss
     Chiesa
     Coats
     Coburn
     Cochran
     Cornyn
     Crapo
     Cruz
     Enzi
     Fischer
     Graham
     Grassley
     Hatch
     Heller
     Hoeven
     Isakson
     Johanns
     Johnson (WI)
     Kirk
     Lee
     McConnell
     Moran
     Paul
     Portman
     Risch
     Roberts
     Rubio
     Scott
     Sessions
     Shelby
     Thune
     Toomey
     Vitter
     Wicker

                             NOT VOTING--1

       
     Inhofe
       
  The PRESIDING OFFICER. Three-fifths of the Senators duly chosen and 
sworn having voted in the affirmative, the motion is agreed to.
  Pursuant to Senate Resolution 15 of the 113th Congress, there will 
now be 8 hours of debate on the nomination equally divided in the usual 
form.
  The Republican whip.
  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

[[Page S7597]]

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

[[Page S7598]]

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.
  The PRESIDING OFFICER. The Senator from Connecticut.