[Congressional Record Volume 159, Number 154 (Thursday, October 31, 2013)]
[Senate]
[Pages S7709-S7710]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      DC CIRCUIT COURT OF APPEALS

  Mr. CORNYN. Madam President, I wish to return to the issue of the DC 
Circuit Court of Appeals, because even though we had an earlier cloture 
vote where the Senate decided to continue debate and not close off 
debate on this issue, I anticipate the majority leader will bring to 
the Senate floor the other two nominees which have now cleared the 
Senate Judiciary Committee for the three seats President Obama has said 
he wants to fill and is asking for the advice and consent of the 
Senate.
  I wanted to make sure we all understand exactly what this debate is 
about. At this very moment, there are plenty of U.S. appellate courts 
that urgently need judges to handle their existing caseload. As my 
friend, the distinguished Presiding Officer, knows as a former attorney 
general, there are a lot of district courts around the country, Federal 
district courts, that could use additional personnel because they are 
what are called judicial emergencies because they have such heavy 
caseloads. They need more help. So why in the world would we want to 
add more judges to a court that does not have enough work for them to 
do? That is exactly what this debate is all about. It is not about the 
specific nominees. It is not an ideological battle that we are all 
familiar with so much as it is one of practical economics.
  Between 2005 and 2013, the total number of written decisions per 
active judge on the DC Circuit declined by 27 percent. From 2005 to 
2013, the number of written decisions per active judge went down by 
almost one-third, 27 percent. The number of appeals filed with the 
court went down by 18 percent.
  As of September 2012, both the total number of appeals filed with the 
DC Circuit and the total number of appeals decided by the DC Circuit 
per active judge were 61 percent below the national average. You can 
see from this chart that has been prepared by the office of the ranking 
member, Senator Grassley, how the 13 circuit courts of appeals compare 
when it comes to the number of cases or appeals filed per active judge.
  In red is the DC Circuit Court of Appeals, the lowest caseload, the 
fewest number of cases of any circuit court in the Nation. Conversely, 
the 11th Circuit out of Atlanta has 778 cases or appeals filed per 
active judge. So I do not know why you would want to take three new 
judges and assign them to the court with the lowest caseload per active 
judge. It makes absolutely no sense.
  By the way, the average for the circuit courts, all 13 circuit 
courts, is 383 cases or appeals filed per active judge; again, the 
average for the entire Nation being 383 appeals per active judge. The 
DC Circuit, to which President Obama wants to add 3 additional new 
judges, is 149, almost one-third.
  One other sort of unique thing about the DC Circuit Court of Appeals 
is while many of these courts are very busy and, indeed, are overworked 
relative to the other circuit courts, the DC Circuit Court is perhaps 
the only court in the Nation that literally took a 4-month break 
between May and September of this year because they could. They did not 
have enough work to do, so they took a break. They took 4 months off 
between May and September.
  The bottom line is that this court is not one that needs more judges. 
In fact, one of the current members of the DC Circuit told Senator 
Grassley, our colleague from Iowa, ``If anymore judges are added now, 
there won't be enough work to go around.''
  So what is this all about? Why are my friends across the aisle 
ignoring the needs of other appellate courts and other jurisdictions 
around the country that have, as the judicial administration office 
terms it, judicial emergencies because they have so much work to do 
that they need help? Why are my colleagues on the other side of the 
aisle ignoring those courts where there are needs in favor of a court 
where there is no demonstrated need?
  Here is perhaps one reason why: The DC Circuit Court of Appeals, 
being located in Washington, DC, does have a unique caseload. I would 
say the types of cases they consider are not particularly more 
complicated. I do not buy that argument. Many of them are 
administrative appeals, which, as the Presiding Officer knows, are 
highly deferential to the administration. It is usually an abuse-of-
discretion standard, which is, as I say, very deferential.
  But the reason why the DC Circuit Court of Appeals is the subject of 
so much focus, whether it is a Republican President or a Democratic 
President, is because it is often called the second most important 
court in the Nation by virtue of its docket, the kinds of cases it 
decides.
  Indeed, this was a court that, before the Supreme Court held portions 
of the Affordable Care Act unconstitutional, actually affirmed the 
constitutionality of the Affordable Care Act, primarily because they 
did not feel it was their prerogative to hold it unconstitutional, 
rather than--and defer to the Supreme Court which ultimately had the 
ability to overrule old cases and reach that result.
  But this court wields tremendous influence over regulatory and 
constitutional matters. The truth is, I will show you a few quotes here 
in a moment that Senator Reid and the President hope that by adding 
three more judges to the court, they can transform it into a 
rubberstamp for the Obama administration agenda.
  Right now there is a balance on the court. There are four judges who 
were nominated by a Republican President, there are four judges on the 
court nominated by a Democratic President. Yet my friends across the 
aisle have been condemning the DC Circuit Court without justification, 
in my view. They have been condemning it as a bastion of partisanship, 
extreme ideology.
  The facts do not bear that out. As I said, remember, this is the same 
court that actually upheld the President's health care law as 
constitutional. It is the same court that twice upheld the President's 
executive order on embryonic stem cell research. It is the same court 
that has ruled in favor of the Obama administration in the majority of 
environmental cases that have come before it, including ones related to 
the regulation of greenhouse gasses, ethanol-blended gasoline, and 
mountaintop removal coal mining. That does not sound like a radical, 
ideological court to me. It sounds like it is a court doing its job 
without fear or favor, in an impartial way, administering justice, not 
engaging in crass partisanship or tilting at ideological windmills.
  Of course, the critics of the court do not mention those decisions I 
mentioned when they are criticizing the court. Instead, they point to 
three separate rulings where the Obama administration did not fare so 
well.
  The first one of those was a ruling that struck down the Securities 
and Exchange Commission proxy access rule which has to do with 
corporate governance. I know that sounds like a lot of mumbo jumbo, but 
basically the court found that the agency had failed to conduct a 
proper cost-benefit analysis. We all understand what that means. The 
statute actually requires the agency to conduct a cost-benefit 
analysis, but the agency did not do it. It ignored the letter of the 
law, and the DC Circuit ordered the administrative agency to follow the 
law and engage in that kind of cost-benefit analysis.
  The second ruling that the critics of the recent court point out came 
in August of 2012 when the court invalidated the EPA's cross-State air 
pollution rule, saying it would impose massive emissions reduction 
requirements on certain States without regard to the limits imposed by 
the statutory text. In other words, when an administrative agency such 
as the EPA issues rules and regulations, they do not do so in a vacuum 
or in a void. They are necessarily guided by the authority given to 
them and the limitations imposed upon them by the laws that Congress 
writes. They are free, within that statutory mandate, to write rules 
and regulations, but they are not free to ignore them or to engage in 
rulemaking that basically goes counter to the direction of Congress.
  So in this case, one that is cited by some of the critics, the court 
held the Clean Air Act does got give the EPA boundless authority or 
unlimited authority to regulate emissions. A court requiring an 
administrative agency to work within its legal authority I think is 
common sense. Otherwise, you would have administrative agencies free to

[[Page S7710]]

chart their own path without regard to any kind of guidance or 
legitimacy conferred by Congress in terms of regulation.
  Remember, these administrative agencies are very powerful entities. 
Some say they are the fourth branch of government. There is a lot of 
concern that I have, that many people have, about overregulation and 
its damage to our economy. The very least the courts ought to do is 
make sure that they are operating within their mandate and the 
limitations imposed upon them by Congress. That is what the court did 
in this cross-State air pollution rule.
  By the way, Texas was caught up in this rulemaking process without 
even having an opportunity to be heard and to challenge the modeling of 
the EPA. Due process is a pretty fundamental notion in our laws, in our 
jurisprudence. Texas, in that instance, was denied any opportunity for 
basic due process of law, another reason why the court made the right 
ruling.
  The third case that has drawn the ire of some critics across the 
aisle on the DC Circuit Court of Appeals has to do with two 
Presidential recess appointments. Every President basically has made 
recess appointments, but no President has done what this President has 
done. It violated the Constitution when doing so. In other words, 
basically President Obama said: Notwithstanding the fact that the 
Constitution gives advice and consent responsibility to the Senate--
that is in the Constitution--the President basically in this instance 
decided when Congress was going to be in recess, for the purposes of 
invoking this extraordinary power, basically said the President was 
going to decide when we were in recess.
  Essentially, as some pundits said, basically the President was 
claiming an authority to be able to appoint judges using the recess 
appointment power when we are ``taking a lunch break.'' That cannot be 
the law. It is not the law. That is what the DC Circuit Court said. So 
the DC Circuit Court said President Obama's legal rationale for 
appointments and the role of the Senate in advice and consent and the 
confirmation proceedings would ``eviscerate the Constitution's 
separation of powers.''
  That is what the DC Circuit said about President Obama's claim to 
have the extraordinary power to make recess appointments and bypass the 
confirmation of the Senate in the Constitution.
  You might wonder if the court has actually been pretty evenhanded in 
terms of its decisionmaking process, you might wonder if it has the 
lightest caseload per judge in the Nation and there are other courts 
that need help a lot more, you might wonder what is going on here. Why 
does President Obama feel so strongly, why does Senator Reid feel so 
strongly, why does the distinguished chairman of the Senate Judiciary 
Committee that I serve on feel so strongly that they want to move these 
three judges through, even though there is no need for these judges on 
the DC Circuit Court?
  Well, I am sorry to reach the conclusion, but I think the evidence is 
overwhelming that what the President is trying to do by nominating 
these unneeded judges to this critical court, the second most powerful 
court in the Nation, is he is trying to pack the court in order to 
affect the outcomes.
  I know my friends across the aisle do not like that term, court 
packing. Students of history remember when Franklin Delano Roosevelt 
claimed the power to appoint additional Supreme Court Justices. That 
was held to be an unconstitutional court packing. But I do not know 
what else you would call this, if you are going to try to jam three 
additional judges on this court that are not needed, the second most 
important court in the Nation, in order to change the outcome of those 
decisions and to rubberstamp the administration's expansive policies. I 
do not know what else you would call it other than court packing. I 
think a fair interpretation or fair definition of court packing is when 
you add judges to a court for the explicit purpose of securing 
favorable rulings.
  That is exactly what Democrats are trying to do with these 
nominations.
  The PRESIDING OFFICER. The time of the Senator has expired.
  Mr. CORNYN. I ask unanimous consent for an additional 2 minutes.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. CORNYN. I wish to quote our friend Senator Reid, the majority 
leader of the Senate. His candor is, again, remarkable and very clear. 
He said:

       We are focusing very intently on the DC Circuit. We need at 
     least one more.

  By that he means one more judge. Continuing:

       There are three vacancies. We need at least one more and 
     that will switch the majority.

  When the court sits en banc, when all judges decide to sit on the 
most important cases, then President Obama will have a majority of 
nominees on that court. They will be able to outvote the Republican 
nominees on the court.
  Senator Schumer is complaining about some of the cases I mentioned a 
moment ago, and he concludes: ``We will fill up the DC Circuit one way 
or another.''
  I believe that the evidence is overwhelming that the motivation at 
play here is one to make sure that this court becomes a rubberstamp for 
the big government policies of this administration. That is why they 
are ignoring appellate courts that actually need the help, and they are 
trying to stack the court in the second highest court in the land. That 
is why they are also threatening--we heard a little bit of that today, 
rattling that saber once again--the nuclear option to try to confirm 
judges with a simple majority rather than the 60-vote cloture 
requirement under the Senate rules.
  We have a good-faith solution. This is Senator Grassley's bill, which 
would allocate these three unneeded judges to places where they are 
actually needed. This is the kind of idea that our colleagues across 
the aisle embraced repeatedly when one of the judges from the DC 
Circuit was reallocated to the Ninth Circuit in 2007.
  If our friends across the aisle continue to move ahead with their 
court-packing gambit, it will make this Chamber even more polarized 
than it already is. I only hope they choose a different course. This is 
why we are committed on this side of the aisle to stopping these 
nominations to these unneeded judges in this court and making sure that 
judges are placed where they are needed so they can engage in a fair 
and efficient administration of justice.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan.
  Ms. STABENOW. Madam President, I wish to enter into a colloquy with 
my great friend from Missouri, Senator Blunt.
  I wish to make a comment, if my colleague will excuse me. I have to 
say I am amazed to hear that we are court packing when what we are 
talking about is trying to fill three vacancies on a court. I hadn't 
heard that before with other Presidents. Hopefully, we can fill 
vacancies and try to do it in a bipartisan way.

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