[Congressional Record Volume 159, Number 160 (Tuesday, November 12, 2013)]
[Senate]
[Pages S7944-S7945]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                              NOMINATIONS

  Mr. CORNYN. Mr. President, back in 2005, before some of the current 
membership of the Senate was even here, we had a very important 
development when it came to judicial nominations and the advice-and-
consent function of the Senate. Never, before the Presidency of George 
W. Bush, had nominees to the Federal court been filibustered; that is, 
a 60-vote threshold been imposed as opposed to a 51-vote threshold, 
which is, of course, what the Constitution says--requiring a majority 
of the Senate. But there was an impasse. A number of judges at the 
circuit court level and district court level were locked down in this 
impasse. But, as so often happens around the Senate, a gang broke out. 
A gang was created. Seven Republicans and seven Democrats got together 
and helped us work through this impasse, and they did so by adopting a 
new Senate precedent which says, in essence, there will be no 
filibusters of Federal judges absent ``extraordinary circumstances.'' 
Yes, you may say that is a broad standard, and it is somewhat 
subjective, admittedly so, but the point was that the default position 
would be that Federal judges would get up-or-down votes and there would 
not be the resort to the 60-vote threshold absent extraordinary 
circumstances. But the point is that has now become the precedent, 
basically the rule by which the Senate operates when it comes to 
Federal judicial nominations, and it is a precedent that has been 
upheld and respected by both sides of the aisle ever since President 
Obama took office.
  This afternoon we will be voting on a second nominee to the DC 
Circuit Court of Appeals, a court some have called the second most 
important court in the Nation because, situated as it is in the 
District of Columbia, here in Washington, most of the judicial review 
of administrative decisions goes through this court at the appellate 
level, and because the Supreme Court only considers roughly 80 cases a 
year, for all practical purposes the DC Circuit Court becomes the last 
word on judicial review on many important decisions, particularly those 
involving agencies such as the Environmental Protection Agency or 
matters of national security or reviewing the regulations associated 
with the financial services industry, such as Dodd-Frank and the like--
a pretty important court.
  Well, unfortunately, the majority leader and the President have 
determined that they are going to try to jam through three new judges 
on the DC Circuit Court of Appeals even though these judges are clearly 
not needed and there is demand elsewhere around the country where the 
workload is far heavier. But because of the special significance of the 
DC Circuit Court of Appeals, there is a conscious effort being made to 
pack that court with three additional judges it does not need in order 
to change the current division--four to four--in a court where 
Republican Presidents appointed four, Democratic Presidents appointed 
four. So it is an evenly balanced court.
  As I said, the DC Circuit Court of Appeals does not need any more 
judges. So why in the world, in a time when we are looking to make sure 
every penny goes as far as it can and we are not spending money we do 
not have, would you want to appoint three new judges to a court that 
does not need any new judges?
  Well, here is the number: Since 2005 the total number of written 
decisions per active judge actually has gone down. As of September 2012 
both the total number of appeals filed in the DC Circuit and the total 
number of appeals ended in the DC Circuit per active judge were 61 
percent below the national average.
  So you might ask yourself, if it carries a 61-percent reduced 
caseload compared to the rest of the country, why don't we put the 
judges where President Obama can nominate them and the Senate can 
confirm them in places where they are actually needed rather than this 
court?
  Well, because of the reduced caseload and the lack of work for the 
judges to do on the DC Circuit, one DC Circuit judge recently told 
Senator Grassley, the ranking member on the Senate Judiciary Committee, 
``If any more judges were added now, there wouldn't be enough work to 
go around.'' Again, why in the world would President Obama insist and 
Majority Leader Reid insist on us confirming judges who are not needed 
when there is not enough work to go around if they were?
  Well, my friends across the aisle continue to say that all they care 
about is filling judicial vacancies, but the majority leader has made 
it clear that his real objective is to switch the majority when the 
court sits en banc. For example, ordinarily, circuit courts sit on a 
three-judge panel, but in important decisions you may have the entire 
court sit en banc or all together. And the objective is clear that the 
majority leader wants to stack it in favor of President Obama's 
nominees, to transform it into a rubberstamp for the President's big-
government, overregulatory agenda.
  Indeed, despite all the victories the administration has won before 
this court, it is apparently not good enough. This administration has 
won several high-profile victories--in environmental cases, for 
example--but they are still upset with the court because it actually 
ruled against President Obama on cases related to corporate governance, 
emissions controls, recess appointments, and nuclear waste. So our 
colleagues are not content to have a court that is balanced and decides 
cases on a case-by-case basis they want to stack the court in a way 
that is a rubberstamp for the President's agenda.
  But here are some examples of the cases the court has decided 
recently. In 2011 the DC Circuit told the Securities and Exchange 
Commission to follow the law--believe that or not--to follow the law 
and conduct a proper cost-benefit analysis before adopting its 
regulations. That is what the law required. The Securities and Exchange 
Commission ignored the law, and the DC Circuit said ``follow the law'' 
and reversed the Securities and Exchange Commission.
  In 2012 the court rejected an Environmental Protection Agency rule 
that went far beyond the limits of the Clean Air Act. These regulatory 
agencies have a lot of power and a lot of authority, but it all springs 
from a legislative enactment by Congress. That is the source of their 
power and their authority, and in this case it was the Clean Air Act. 
The court said the Environmental Protection Agency exceeded the limits 
of its authority based on the law that Congress wrote and the President 
signed into law.
  Then, in 2013, President Obama violated the Constitution, the court 
said, by making recess appointments when the Senate was not actually in 
recess. This is a very important power that goes back to President 
Washington that makes sure that when Congress is in recess there is 
still a way for the President to fill vacancies. But that was in the 
old days when Congress would basically leave town for months at a time. 
In this case, President Obama essentially decided he did not want to 
wait around for the advice-

[[Page S7945]]

and-consent function or the confirmation function that is given in the 
Constitution to the Senate, and he jammed these nominees through using 
what he called his ``recess appointment'' power.
  Well, the DC Circuit Court of Appeals said: That is unconstitutional. 
Mr. President, you cannot do that. The law does not allow it.
  But that is another reason why, I suggest, the President is eager to 
stack this court with people he believes will be more ideologically 
aligned with his big-government agenda.
  Then there was one more decision this past August that I will 
mention. The court reminded the Nuclear Regulatory Commission of its 
legal requirement to make a final decision on whether to use Yucca 
Mountain as a nuclear waste repository. That sounds kind of arcane, but 
it is very important--certainly to the people of Nevada and to the U.S. 
national security interests when you talk about a safe and secure 
location to put nuclear waste.
  I would submit that all of these were commonsense rulings for which 
there is a very sound and broad legal basis, and the court was doing 
what all courts are supposed to do; that is, uphold the law. 
Apparently, the administration does not think this court should be in a 
position to do that, and they do not think they should have to be in a 
position to follow the law. They do not seem to care that the DC 
Circuit Court has ruled in favor of the administration on things such 
as stem cell research, health care, greenhouse gas regulation, and 
other hot-button issues. They do not seem to care that the court's 
eight active judges are evenly split between Republican and Democratic 
appointees. In their view, by upholding the law the DC Circuit has been 
insufficiently supportive of the Obama agenda, so now they are 
attempting to pack the court with three unneeded judges in order to 
stack it in the administration's favor.
  I said last week that my colleague from Iowa, Senator Grassley, has 
offered a commonsense alternative. It is a good compromise, and we have 
done it before. It would actually reallocate two of these seats on the 
DC Circuit that are unneeded to other courts in the country where they 
are needed. What makes more sense than that? We have done that once 
before. We took one of these positions from the DC Circuit and 
reallocated it to the Ninth Circuit, where they needed judges before. 
We ought to be putting the resources where they are actually needed, 
not stacking them in a court where the resources are not needed in 
order to pursue an ideological end.
  Unfortunately, our friends across the aisle--the majority leader and 
others--have rejected the Grassley compromise and pushed ahead with 
their court-packing maneuver. Given their stated desire to make the DC 
Circuit a liberal rubberstamp, Democrats have created an extraordinary 
circumstance that justifies the filibuster under the 2005 precedent 
brought about by the Gang of 14 that I started off with. I wish we had 
resolved this sooner. I wish my friends across the aisle would give 
serious consideration to the Grassley proposal. But for now, I am 
afraid we have reached an impasse, and so we will be voting on this 
nomination this afternoon.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. DURBIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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