[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
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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
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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.