[Congressional Record Volume 159, Number 154 (Thursday, October 31, 2013)]
[Senate]
[Pages S7694-S7699]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Affordable Care Act
Mrs. BOXER. Mr. President, I am so pleased to be on the floor with
some very good news out of California and how ObamaCare, the Affordable
Care Act, is working in our great State. People are phoning. People are
going
[[Page S7695]]
online. People are talking with insurance agencies, with health
insurance companies. They are getting health care coverage, some for
the very first time, and for many for the first time it is affordable;
all good policies--good policies that will be there when they are
needed.
We know a small percentage of people, as the President addressed
yesterday, are being told their old policies are not going to be
offered to them anymore, but all of those folks know they can get
better policies. They can't be turned away. There will be competition
for their business. Many of them will get subsidies. So at the end of
the day, this health care story, although quite bumpy, as we know the
prescription drug launch was years ago--we know it is bumpy, and we are
angry on both sides of the aisle that it is bumpy--but at the end of
the day, I think it is going to be good.
I wish to read some of the comments made by people who have logged in
to ``Covered California,'' which is coveredCA.com. Here is one who just
got an affordable health care policy:
Thank you so much, President Obama! And everyone who works
there.
This was soooo much easier than I thought it would be! I am
soooo grateful to get medical insurance! Thank you!
Another:
Great phone support, thank you. No wait time, the assistant
answered all my questions clearly.
Another:
GREAT JOB! EASY! WHAT'S All THE FUSS ABOUT?
Another:
Wow. This was easy and my monthly premiums are
significantly less than my previous employer's health care
coverage before the Affordable Care Act.
One who I thought truly summed it up:
Thank God Almighty I'm free at last!
These are the real people. These are not people who have a political
agenda. They are real people. They are Democrats. They are Republicans.
They are Independent voters. They have had a hard time getting health
insurance and, because of the Affordable Care Act, with all of its
glitches on the national Web site--and we acknowledge them--it is
working. It is working in our State, and eventually, once that national
Web site is fixed, it will work for everybody.
I wish to put some real numbers on this: 180,000 Californians have
begun the process of signing up for coverage--180,000 families. Imagine
the relief they have. Over 2 million unique visitors have been to
coveredCA.com. There have been 200,000 calls to coveredCA.com's call
centers. The average wait time is under 4 minutes and the average total
call time is less than 16 minutes for Californians enrolling in
coverage and asking questions. We have 4,000 insurance agents and
clinic workers trained so far and certified. They have their badges so
they can offer, in person, help to those who are looking to enroll.
Very recently I went to a clinic in my home county and I can tell my
colleagues the excitement there is palpable. The doctors, the nurses,
the assistants, the people in the waiting room, everybody knowing they
can get either insurance on the exchange or insurance through an
expanded Medi-Cal Program. We have millions of people who will be able
to sign up on the exchanges. We have about 1.4 million people who could
sign up for the expanded Medi-Cal Program.
Do I have any time remaining?
The ACTING PRESIDENT pro tempore. The Senator has 5 seconds
remaining.
Mrs. BOXER. Five seconds. I hope we get these two wonderful nominees
on the way to confirmation today.
I hope we will be patient and that we will all work together to fix
the problems with health care. I think, at the end of the day, it is
going to be great.
I thank the Chair and yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Alabama.
Mr. SESSIONS. Mr. President, I wish to share some thoughts about the
filling of the District of Columbia Circuit Court of Appeals
judgeships. I have been involved in that issue for well over a decade.
We started looking at the case numbers when President Clinton was in
office. I, along with Senator Chuck Grassley, both Republicans, blocked
President Bush from filling a vacancy, because that court did not need
another judge and they wanted to fill it. Let's be frank. Presidents
want to fill the DC Circuit Court of Appeals because they think they
can shift the balance there and be able to advance their agenda
throughout the judicial process because a lot of key cases are filed
there, and lobbyists and outside forces that care about judges want the
Presidents to put their kind of people in those positions--maybe even
their law partner or their friend or their political buddy on that
court. But there are some great judges on the court. But I am Ranking
Republican on the Budget Committee also. I serve on the Judiciary
Committee and on the Budget Committee. We have no money in this country
to fund a judgeship that is not needed.
The last time we were able to move one of those judges to the Ninth
Circuit where the position was needed. Today, it is clear that the
caseload for the DC Circuit continues to fall. The number of cases per
judge in the DC Circuit continues to decline. Senator Grassley has been
a champion of this issue for years. He chaired the court subcommittee
of the Judiciary Committee. I chaired it after he did. We have seen
these numbers.
Senator Durbin says, Oh, it is a shame. It is a shame these nominees
don't get confirmed. As Senator McConnell noted, it was a shame that
Peter Keisler, a fabulous nominee, didn't get confirmed. But, in all
honesty, the court didn't need that slot filled and they don't need any
of the three slots today that are vacant. They do not need to be
filled. Congress has no responsibility to fill a vacancy that is not
needed, and we shouldn't do it. Each one costs about $1 million a year.
That is what it costs to fill a judgeship.
We have needs around the country. We have certain needs around the
country, and we are going to have to add judges. Why would we fill
slots with judges we don't need and not fill slots with judges we do
need? That is my fundamental view about it. I will just say this: It is
not going to happen. We are not going to fill these slots. This country
is in deep financial trouble.
The majority basically is saying: Oh, the Budget Control Act and, oh,
we have cut to the bone. We can't find another dime in savings. Do you
know what the problem is, America? You haven't sent us enough money. If
you would just send more money to Washington, we could spread it around
and everything would be fine.
This is basically what we are hearing from the leadership: No more
cuts. In fact, the Budget Control Act reduced spending too much. Oh,
this is critically important. Every dollar we spend is critically
important and we can't reduce a dime of it or even the growth of it.
That is what we have been hearing: Send more money to Washington. We
want to raise taxes. We are open about demanding increases in taxes to
fund whatever it is we want to spend.
Is there any waste and abuse in this government? There absolutely is.
Look at this chart. Senator Durbin is on the Judiciary Committee. He
has been involved in this. He knows these numbers. There is nothing
phony about what I am showing my colleagues today. This is absolute
fact: Total appeals filed per active judge. These are the judges on the
court today. The DC Circuit has eight judges. They have eight judges.
The number of appeals filed per judge in their court is 149, and the
average per circuit judge in America is 383. The average is 2\1/2\
times that number. We do not need to fill these slots.
Look at the Eleventh Circuit. They have vacancies, but at this point
they are doing almost 800 cases per judge per year. Think about that.
In the Second Circuit, which is Manhattan--a very important circuit
with very complex cases--there are more than 2\1/2\ times the number of
cases than the DC Circuit. Remember, this is the current number of
judges, I say to my colleagues. This isn't if we were to add three more
judges. If we added three more judges, it would be a little over 100
cases per judge, not 149. This is absolute fact. They take the entire
summer off. No other circuit does this. They have canceled oral
arguments they had scheduled because there were no cases to argue. They
take the summer off.
I talked to one circuit judge in another circuit who said: At least
one of
[[Page S7696]]
the judges in the DC Circuit goes around the country sometimes and
helps out, but none of our judges can because we are so busy we don't
have time to do it.
Most of our judges are working very hard. I am a total believer in
the integrity and the value of the Federal judiciary. I respect them
greatly. They do important work. But it has just so happened in the
course of our American system that the DC Circuit is at a point where
it has the lowest caseload per judge in decades, of any circuit and it
needs to be fixed and the number of cases continues to decline.
So what I would say to my colleagues is I believe we should give
deference to the President in the nomination of judges. I voted for, I
am sure, close to 90 percent of the nominations the President has
submitted. I voted for almost 90 percent, I would suggest. But I am not
going to support three judges we don't need. The last thing we need to
be doing is burning on the Mall of the United States of America $3
million a year to fund judgeships we don't need. There are other places
in this government we can cut wasteful spending as well, but this one
highlights the situation.
I suggest to my colleagues this is a test to this Senate. This is a
test for all of the Members of the Senate. If we say there is no place
to save money in Washington; if we say we have found every bit of
waste, fraud, and abuse there is--well, look at this court.
I am not condemning any of the nominees. I am not complaining about
their quality or their ability. I am saying the taxpayers of America
should not have extracted from them another $3 million a year to fund
three judges that absolutely are not needed, particularly when we have
legitimate needs in other courts around the country that need more
judges.
Look at the Eleventh Circuit, my circuit: Almost 800 cases per judge
filed. This circuit, the DC Circuit, 149, and they want three more
judges--not so.
I believe we have a 10-minute limit. How much time remains?
The ACTING PRESIDENT pro tempore. The Senator has 1 minute remaining.
Mr. SESSIONS. So, in conclusion, I appreciate the opportunity to be
here. It looks as though we will vote on the Millett nomination maybe
later today. With no personal criticism of that nominee in any way, I
think it is important for us to say we just don't need these slots. We
are not going to fill them. Not one of the three needs to be filled. We
are not going to fill any of them. We are going to honor the finances
of the American people.
Once again, I express my appreciation to Senator Chuck Grassley, the
ranking member of the Judiciary Committee, who has led the fight on
this issue for a number of years. I have worked with him on it. We have
legislation to transfer these judgeships to other places. That is what
we should be doing, moving them to where they are needed. It has been
great to work with Senator Grassley.
I thank the Chair and yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from North Carolina.
Mrs. HAGAN. Mr. President, I rise today to speak about Congressman
Mel Watt.
Mr. SESSIONS. Mr. President, if the Senator will yield for an
inquiry, under the UC were we going to divide 30 minutes per side? Was
that the intent of the unanimous consent request I made earlier?
The ACTING PRESIDENT pro tempore. The time until noon is equally
divided in the usual form.
Mr. SESSIONS. In the usual form. All right.
The ACTING PRESIDENT pro tempore. The Senator from North Carolina.
Mrs. HAGAN. Mr. President, I rise today to speak about Congressman
Mel Watt, who is a champion for middle class families in my home State
of North Carolina. Mel Watt is the President's nominee to be the next
Director of our Federal Housing Finance Agency.
Congressman Watt is a true North Carolinian. He was born in North
Carolina. He attended the University of North Carolina at Chapel Hill,
and he has spent much of his distinguished career working for the
people of North Carolina.
Congressman Watt is an outstanding choice to lead the Federal Housing
Finance Agency.
Over his 20 years on the House Financial Services and Judiciary
Committees, Congressman Watt has been a steadfast advocate for
affordable housing in North Carolina and across the country. He has
worked tirelessly to protect families from predatory and deceptive
lending practices.
He has been willing to work across the aisle to find common ground on
issues that promote economic opportunity for the middle class.
Well before the housing crisis, Congressman Watt raised concerns that
predatory lending practices were harming consumers and putting our
housing market at risk. He was instrumental in enacting Dodd-Frank and
in supporting its antipredatory lending provisions. He will be a
tremendous asset to our housing market and economy moving forward.
In a letter to the Senate this week, 54 community and advocacy
organizations called for Congressman Watt's confirmation, saying:
Representative Watt has the depth to grasp the problems
that plague Fannie Mae and Freddie Mac, and has the skills to
work with everyone involved to get the housing market back on
track.
I agree. I was proud to join my North Carolina colleague Senator
Richard Burr in introducing Congressman Watt at his confirmation
hearing earlier this year, and I am pleased that the Banking Committee
approved his nomination.
The bipartisan support for Congressman Watt from our delegation in
North Carolina is representative of his longtime ability to work across
the aisle.
During his distinguished tenure in Congress, Congressman Watt worked
with Republican Judiciary Committee Chairman Bob Goodlatte and
Representative Lamar Smith to pass legislation that addressed Patent
and Trademark Office backlogs. And he worked with Representative Blaine
Luetkemeyer on legislation that ensured adequate transparency for ATM
fees while eliminating excessive regulatory burdens.
Congressman Watt's long congressional career builds on more than two
decades in the private sector as a small business owner and a legal
expert.
With experience in the private sector and more than two decades of
service on the House Financial Services Committee, Congressman Watt has
the background, the skills, and the history of bipartisan cooperation
necessary to confront the challenges facing our recovering housing
market.
His nomination is supported by industry leaders such as the National
Association of Realtors president Gary Thomas and the National
Association of Home Builders chairman Rick Judson. He is supported by
the Mortgage Bankers Association and the United States Conference of
Mayors. And he is supported by Erskine Bowles, cochair of the National
Commission on Fiscal Responsibility and Reform, and the former Bank of
America chairman and CEO Hugh McColl.
In fact, I ask unanimous consent that these letters from the National
Association of Realtors, the National Association of Home Builders, and
Mr. McColl be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
National Association
of Realtors',
Washington, DC, October 29, 2013.
Dear Senator: On behalf of the one million members of the
National Association of Realtors' (NAR), their
affiliates, homebuyers, and homeowners, I strongly urge the
United States Senate to expeditiously confirm Representative
Mel Watt as the next Director of the Federal Housing Finance
Agency (FHFA).
The National Association of Realtors' has long
appreciated Representative Watt's proven ability and
willingness to engage the industry, stakeholders, and
consumers throughout his service in the U.S. House of
Representatives. Watt has always aimed to craft policy that
is fair, garners wide consensus, and allows all parties to
move forward, all of which are vital qualities for the
Director of the FHFA.
The extended conservatorship of the government-sponsored
enterprises, Fannie Mae and Freddie Mac, is one of the most
pressing issues facing the housing sector. This requires that
the FHFA be led by a permanent Director, who looks for
measured and comprehensive solutions that will protect both
the housing market and taxpayers. Representative Watt has
clearly demonstrated through his extended service and
involvement with key housing issues before the
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House Financial Services Committee that he has a keen
understanding of the importance of housing finance to the
nation's economy.
The FHFA Director plays a critical role in the future of
our nation's housing finance system and must weigh the costs
of action and inaction with the benefits of protecting the
taxpayer and ensuring the continued recovery of housing.
Representative Watt has the experience and skill necessary to
work with Congress and the Administration to ensure that both
costs and benefits are handled in a manner that benefits our
nation. As our economy continues its slow recovery from the
Great Recession, we must focus on sensible and commonsense
policies that foster strong growth and stability.
Representative Watt has the experience, knowledge, and
ability to bring that much needed focus to the FHFA.
In short, we know that Representative Watt will not only be
an asset to FHFA but also to the Congress and the
Administration as we work together to restore strength to the
housing and mortgage markets. The National Association of
Realtors urges confirmation of Representative Watt,
and stands ready to work with FHFA and Congress to facilitate
a strong housing and economic recovery.
Sincerely,
Gary Thomas,
2013 President, National Association of Realtors'.
____
National Association
of Home Builders,
Washington, DC, October 29, 2013.
Hon. Harry Reid, Majority Leader,
U.S. Senate,
Washington, DC,
Hon. Mitch McConnell,
Minority Leader, U.S. Senate,
Washington, DC.
Dear Majority Leader Reid and Minority Leader McConnell: On
behalf of the 140,000 members of the National Association of
Home Builders (NAHB), I am pleased to offer NAHB's strong
support for the nomination of Representative Mel Watt as the
next Director of the Federal Housing Finance Agency (FHFA). I
urge you to support his nomination when it is considered by
the full Senate later this week.
Today's mortgage finance system is in a state of
uncertainty. The ongoing conservatorship of the government
sponsored enterprises (GSEs), Fannie Mae and Freddie Mac,
continues to be one of the most challenging issues facing the
housing industry today. With the path forward for
comprehensive housing finance reform taking shape, and with
that outcome still very uncertain, having a permanent FHFA
Director will be critical to ensure the safety and soundness
of the housing GSEs, as well as promote a stable and liquid
residential mortgage financing system for our nation's
housing market. NAHB believes that the confirmation of
Representative Mel Watt will bring much-needed certainty to
the U.S. housing finance system as we transition from the
current state of conservatorship to a new and stronger system
of housing finance.
Representative Watt will bring years of experience to this
position at a pivotal moment in the recovery of our nation's
housing market. During Representative Watt's tenure on the
House Financial Services Committee, he has proven to be a
thoughtful leader on housing policy. The FHFA needs a
permanent director with his leadership capabilities.
NAHB looks forward to working closely with Representative
Watt to help address the many complex challenges still facing
the housing finance system and the recovery of the housing
market. We hope that the Senate will move quickly to approve
his nomination.
Best regards,
Rick Judson,
2013 NAHB Chairman of the Board.
____
Charlotte, NC, October 25, 2013.
To: The Editor
Time To Act on the Mel Watt Nomination
Given the need to have more economic activity, it appears
to me that the Senate should move now to confirm Congressman
Mel Watt as Director of FHFA. There seems to be no reason not
to approve Mr. Watt's nomination other than he has been
nominated by the President.
I have known Mel Watt for 40-some odd years, both as a
lawyer and as a US Congressman. I know him to be highly
intelligent, a man of impeccable character, and a straight
shooter. While Chairman of the Board of the Bank of America,
I consulted with him on many occasions about banking
legislation. We did not always agree with each other, but I
always knew that I was getting an honest opinion and one that
was well thought out.
Mr. Watt has been a real estate lawyer in one of the
fastest growing cities in America--Charlotte, NC, and he is
very much aware of the need for housing loans for people from
all economic segments. Most of his more than 20 years in
Congress were spent on the House Financial Services
Committee.
It is worth reminding people that Congressman Watt has a
business degree from the University of North Carolina at
Chapel Hill, and a law degree from Yale University. Without
question, he is well educated. No doubt he is smart, and
there is no doubt that we need somebody like him in charge.
I hope Senator Burr and Senator Hagan from North Carolina
will push for his confirmation. The Country needs him.
Sincerely,
Hugh L. McColl, Jr.
Mrs. HAGAN. Congressman Watt's strong record of working with industry
leaders, consumer advocates, Democrats and Republicans proves that he
can deliver results for middle class families across the country and in
North Carolina.
We need Congressman Watt at the Federal Housing Finance Agency. I
know he will work successfully with Congress to strengthen the backbone
of our current housing finance system, and I urge my colleagues to join
me in supporting his nomination later today.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Pennsylvania.
Mr. TOOMEY. Mr. President, just a parliamentary inquiry: I have 10
minutes allocated to me?
The ACTING PRESIDENT pro tempore. The Senator is correct.
Mr. TOOMEY. Thank you very much, Mr. President.
I rise to address the candidacy of Congressman Mel Watt to be
Director of the Federal Housing Finance Agency as well.
Let me preface my comments by making it very clear. I know
Congressman Mel Watt. He is a good man. I served with him in the House.
We served on the Banking Committee together. I know for many years he
has been and continues to be a passionate advocate for increasing
taxpayer subsidies for housing finance, and I have never once doubted
his sincerity, his commitment, or his passion for working for his
constituents and also for disadvantaged people generally. Having said
that, while Mel Watt is certainly a good man, I think this is the wrong
job for this good man, and I want to explain why.
I think it is useful to first consider the massive size of the
institutions that the Federal Housing Finance Agency, the FHFA,
regulates. Fannie Mae, Freddie Mac, the Federal Home Loan Banks
combined are enormous.
Fannie and Freddie together hold 48 percent of all the outstanding
mortgages in the United States of America. Last year, they guaranteed
almost 80 percent of all the new mortgages that were issued. Combined,
Fannie and Freddie have assets that are nearly $5.2 trillion--this is
much larger than the Federal Reserve--which have just made themselves
into an enormous institution. Combined, Fannie and Freddie are more
than twice as big as JPMorgan Chase, the biggest bank in America. In
addition to being very large, they are enormously complex, and they are
at the center--in fact, they are the housing finance market of the
United States of America.
So they are enormously large, they are enormously complex. And the
post we are talking about here--the directorship of the regulator--has
virtually unchecked powers. The legislation that creates this post,
that creates this agency and the head of this agency, empowers the
Director enormously. Let me quote from the statute. The Director's
powers include ``all rights, titles, powers, and privileges of the
regulated entity, and of any stockholder, officer, or director'' of the
entity. In plain English that means this person has the power of the
entire board of directors, the CEO and all the management, and the
regulatory agency that controls it all. There is no parallel in our
country for an institution where so much power is concentrated in one
person.
In addition, there is no congressional oversight. The FHFA does not
depend on Congress for appropriations. It gets its money from fees from
the entities it regulates. So Congress has no control, no authority,
once a person is confirmed in this post, and they are confirmed for a
5-year term and can only be removed for cause. So it is unchecked power
on an enormous scale.
Now, precisely because of the unchecked power over these enormously
large, important, powerful, and complex institutions--precisely for
that reason--the statute stipulates very clearly that the person
holding this post has to be someone who is technically competent
because of their own history, because they have been a practitioner in
this field. The legislation demands that, and for good reason.
Specifically, the law insists that the Director shall have a
``demonstrated
[[Page S7698]]
understanding of financial management or oversight, and have a
demonstrated understanding of capital markets, including the mortgage
securities markets and housing finance.''
So we are not talking about being automatically qualified by virtue
of being a Member of Congress. One needs to be a practitioner. I will
give you one quick example of many why central to the management of the
enormous complexity of these institutions is the use of complex
derivatives, which manage the interest rate risk inherent in these
portfolios. Fannie and Freddie are the world's biggest users of
derivatives for this risk management purpose. Understanding how these
work, the risks that are inherent in them, and how it affects the
broader capital markets is absolutely essential. Yet in December 2011,
Mel Watt said this. I quote Congressman Watt:
For all of the last term of Congress, I sat in the
Financial Services Committee, and a lot of these arguments
that I am hearing today are the same arguments that I heard
about derivatives. Well, I didn't know a damn thing about
derivatives. I am still not sure I do.
Derivatives are central to the management of these institutions.
There is another reason why this statute insists on an experienced
practitioner and a technocrat rather than a politician, and that is
because pursuing a political agenda at these institutions is enormously
dangerous. Look at the damage that it did the last time. Congressman
Watt was an advocate for all of the policies that helped to drive
Fannie and Freddie into the conservatorship that cost taxpayers so much
money. He supported lower capital standards, lower downpayments, lower
underwriting standards, loan forgiveness. He was opposed to tougher
regulations, even when it was becoming clear that these institutions
were on a downward spiral and soon would need a massive bailout.
Unfortunately, Congressman Watt still supports these policies. And if
he were confirmed as the Director, with all of these powers, he could
unilaterally reinstitute these policies.
Now, fortunately, at the moment, we have a Director who understands
that his obligation to the taxpayer precludes these misguided policies.
I am deeply concerned that if confirmed, Congressman Watt would reverse
that practice and reinstitute some of these very damaging and dangerous
policies.
So for these reasons and, I would say, in respect and in honoring the
clear language of the statute, we have an obligation to not confirm
Congressman Mel Watt. While I know he is a very good man, I think he is
the wrong person for this job. So I would urge my colleagues to vote no
on cloture later today.
I yield the floor.
The Nomination of Mel Watts
Mr. INHOFE. Mr. President, while not many people know about
the Federal Housing Finance Agency, it has become one of the most
powerful and important government agencies. Following the financial
crisis and massive bailouts of Fannie Mae, Freddie Mac, and all the big
banks, the Federal Government took a primary position in the mortgage
market. Right now, 48 percent of all outstanding U.S. mortgages and 77
percent of those issued last year were guaranteed by the Federal
Government. This is a problem in and of itself, but the FHFA is the
agency that oversees all of them.
Mel Watts is the guy President Obama has nominated to lead the
agency. I know Mel from my time both in the House and the Senate, and I
am deeply concerned that he will push the Federal Government further
into the mortgage business, instead of moving us away from it. He has
shown his colors during his time here in Washington, and he is not the
right guy to lead the agency. I am opposed to his nomination and urge
my colleagues to oppose him.
The ACTING PRESIDENT pro tempore. The Senator from Iowa.
Mr. GRASSLEY. Mr. President, I rise in opposition to any motion to
invoke cloture on nominees to the DC Circuit. I am somewhat
disappointed that the Senate majority wants to turn to a very
controversial nomination next rather than to continue on a path of
cooperative confirmations or other important Senate business. It seems
to me that scheduling such a controversial vote in the closing weeks of
this session of Congress is designed simply to heat up the partisanship
of judicial nominations.
My opposition is based on a number of factors.
First, an objective review of the court's workload makes clear that
the workload simply does not justify adding additional judges,
particularly when additional judgeships cost approximately $1 million--
$1 million--every year per judge.
Second, given that the caseload does not justify additional judges,
you have to ask why the President would push so hard to fill these
seats. It appears clear that the President wishes to add additional
judges to this court in order to change judicial outcomes.
Third, the court is currently comprised of four active judges
appointed by a Republican President and four active judges appointed by
a Democratic President. There is no reason to upset the current makeup
of the court, particularly when the reason for doing so appears to be
ideologically driven.
I will start by providing my colleagues with a little bit of history
regarding this particular seat on the DC Circuit.
It may come as a surprise to some, but this seat has been vacant for
over 8 years. It became vacant in September 2005, when John Roberts was
elevated to Chief Justice.
In June of 2006, President Bush nominated an eminently qualified
individual for this seat, Peter Keisler. Mr. Keisler was widely lauded
as a consensus bipartisan nominee. His distinguished record of public
service included service as Acting Attorney General. Despite his broad
bipartisan support and qualifications, Mr. Keisler waited 918 days for
a committee vote. The vote never happened.
When he was nominated, Democrats objected to even holding a hearing
for the nominee based upon concerns about the workload of the DC
Circuit.
First, I would like to remind my colleagues that in 2006 Democrats
argued that the DC Circuit caseload was too light to justify confirming
any additional judges to the bench. Since that time, do you know what
happened. The caseload has continued to decrease.
In terms of raw numbers, the DC Circuit has the lowest number of
total appeals filed annually among all the circuit courts of appeals.
In 2005 that number was 1,379. Last year it was 1,193--a decrease of
13.5 percent.
There are a lot of different ways to look at these numbers, but
perhaps the best numbers to examine are the workload per active judge.
The caseload has decreased so much since 2005 that even with two fewer
active judges, the filing levels per active judge are practically the
same. In 2005, with 10 active judges, the court had 138 appeals filed
per active judge. Today, with only 8 active judges, it has 149. This
makes the DC Circuit caseload levels the lowest in the Nation and less
than half the national average.
It has been suggested that there are other circuits, namely the
Eighth and the Tenth, that have lighter caseloads than the DC Circuit.
That is inaccurate. The DC Circuit has fewer cases filed and fewer
cases terminated than either the Eighth or the Tenth Circuit.
Cases filed and cases terminated measure the amount of appeals coming
into the court and being resolved. Some of my colleagues have been
arguing that the Eighth and the Tenth Circuits are similar to the DC
Circuit based upon the comparison of pending cases. But cases pending
does not measure how many cases are being added and removed from the
docket.
When looking at how many cases are added or filed per active judge,
the DC Circuit is the lowest with 149. It is lower than the Eighth
Circuit's 280 and the Tenth Circuit's 217. When looking at the number
of cases being terminated by each court, the DC Circuit is once again
the lowest at 149. Again, the Eighth Circuit and the Tenth Circuit
courts are much higher at 269 and 218.
Let me mention one other important point about pending appeals and
the statistics my colleagues use. Several of my colleagues said on the
floor yesterday that in 2005 there were only 121 pending appeals per
active judge. That number seemed a little odd to me, so we looked into
it a bit further, what the situation was in 2005. In order to arrive at
that number, my colleagues appear to be taking the total appeals for 12
months ending June 30, 2005, and dividing them by 11 active judges.
[[Page S7699]]
As it turns out, there were only 9 active judges for almost that
entire 12-month period. Janice Rogers Brown was sworn in on June 10,
2005, and Judge Griffith was sworn in June 29, 2005. As a result,
during that 12-month period there were 10 active judges for a total of
only 19 days. There were 11 active judges on the DC Circuit for a grand
total of 1 day.
A few months later in 2005, the court was back down to nine after
Judge Roberts was elevated to the Supreme Court and Judge Edwards took
senior status.
This is how hard pressed the other side is to refute what everyone
knows to be true: The caseload of the DC Circuit is lower now than it
was back in 2005. In order to have a statistic that supports their
judgment, the other side is claiming there were 11 active judges for
that 12-month period, while that claim was true for only a total of 1
day.
The bottom line is this: The objective data clearly indicates the DC
Circuit caseload is very low and that the court does not need
additional active judges. That is especially true if you use the
standard Senate Democrats established when they blocked Mr. Keisler.
In addition to the raw numbers, in order to get a firsthand account,
several months ago I invited the current judges of that court to
provide a candid assessment of their caseload. What they said should
not surprise anyone who has looked at this closely. The judges
themselves confirmed that the workload on the DC Circuit is
exceptionally low, stating, ``The court does not need additional
judges.'' And, ``If any more judges were added now, there wouldn't be
enough work to go around.''
Those are powerful statements from the sitting judges in that
circuit. Given these concerns, it is difficult to see why we would be
moving forward with additional nominations, especially in a time when
we are operating under budget constraints. Unfortunately, the
justification for moving forward with additional DC Circuit nominees
appears to be a desire and an intent to stack the court in order to
determine the outcome of cases this court hears.
It is clear the President wants to fill this court with ideological
allies for the purposes of reversing certain policy outcomes. This is
not just my view. It has been overtly stated as an objective of this
administration.
I would quote along this line a Washington Post article, ``Giving
liberals a greater say on the D.C. Circuit is important for Obama as he
looks for ways to circumvent the Republican-led House and a polarized
Senate on a number of policy fronts through executive order and other
administrative procedures.''
We have a President who says: If Congress will not, I will. How do
you stop that? The courts are the check on that. Even a member of the
Democratic leadership admitted on the Senate floor that the reason they
need to fill these seats was because, as he saw it, the DC Circuit was
``wreaking havoc with the country.''
This is perplexing, given the current makeup of the court. Currently,
there are four Republican-appointed judges, and, with the most recent
confirmation, there are now four Democratic-appointed judges.
Apparently some on the other side want to make sure they get a
favorable outcome of this court.
I have concerns regarding filling seats on this court which clearly
has a very low caseload. I have greater concerns about this President's
agenda to stack the court and to upset the current makeup simply in
order to obtain favorable judicial outcomes because: If Congress will
not, I will.
Given the overwhelming lack of a need to fill these seats based upon
caseload and especially considering the cost to the taxpayers of over
$1 million per judge per year, I cannot support this nomination and
urge my colleagues to reject it as well.
I yield the floor.
Mr. HATCH. Mr. President, since I was first elected, the Senate has
considered more than 1700 nominations to Article III federal courts. In
nearly every case, the focus was on the individual nominee and whether
he or she was qualified for judicial service. The nominee before us
today is one of the rare exceptions. The focus here is on the court to
which she and two others have been nominated, the US Court of Appeals
for the DC Circuit. I cannot support any of these nominees because no
one, no matter who they are and no matter what their qualifications,
should be appointed to this court at this time.
It would be difficult to make a more compelling case that the DC
Circuit needs no more judges. The Administrative Office of the U.S.
Courts is the keeper of the caseload facts and ranks the DC Circuit
last among all circuits in appeals filed and appeals terminated per
judicial panel. In fact, the AO ranks the DC Circuit last even in the
catch-all category of ``other caseload per judgeship.'' And Chief DC
Circuit Judge Merrick Garland recently confirmed that the number of DC
Circuit cases scheduled for oral argument has declined by almost 20
percent in the last decade.
Here is another way to look at this issue. In July 2006, Democrats on
the Judiciary Committee signed a letter to then-Chairman Arlen Specter
opposing more DC Circuit appointments for two reasons. First, they used
specific caseload benchmarks to conclude that the court's caseload had
declined. Second, they said that filling vacancies labeled judicial
emergencies by the Judicial Conference was more important.
I am not aware that my Democratic colleagues on the Judiciary
Committee have said either that they used the wrong standard in 2006 or
that their 2006 standard should not be used today. I do not want to
accuse anyone of using different standards for nominees of different
political parties, so it is fair to apply the same standard that
Democrats used to oppose Republican DC Circuit nominees.
Democrats opposed more DC Circuit nominees because total appeals
filed had declined. According to the AO's most recent data, total
appeals filed have declined 18 percent further since 2006. Democrats
opposed more DC Circuit nominees because written decisions per active
judge had declined. The AO's data show that written decisions per
active judge have declined 27 percent further since 2006. Democrats
opposed more DC Circuit nominees because there were nominees to only 60
percent of the 20 existing judicial emergency vacancies. Today, the
Senate has pending nominees to only 49 percent of the 37 current
judicial emergency vacancies. These are the facts. New appeals filed
and written decisions per active judge in the DC Circuit are both 76
percent below the national average and 50 to 60 percent below the next
busiest circuit.
I hope that my colleagues get the point. No matter how you slice it
or dice it, the DC Circuit has the lowest caseload of any circuit in
the country and its caseload continues to decline. The very same
standards that Democrats used to oppose Republican nominees to the DC
Circuit in 2006 show conclusively that the court needs no more judges
today. As I said, none of my Democratic colleagues--and 4 who signed
that 2006 letter are on the Judiciary Committee today--have said they
were wrong in 2006 or attempted to explain why their 2006 standard is
inappropriate today.
The Senate evaluates the vast majority of judicial nominees on their
own merits. These current DC Circuit nominees are the rare exception
because they have been chosen for a court that needs no more judges at
all. The better course would be to enact S. 699, the Court Efficiency
Act, which would move two of these unnecessary DC Circuit seats to
circuits that need them.
I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Ms. WARREN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.