[Congressional Record Volume 159, Number 173 (Monday, December 9, 2013)]
[Senate]
[Pages S8552-S8553]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF PATRICIA ANN MILLETT TO BE UNITED STATES CIRCUIT JUDGE 
                  FOR THE DISTRICT OF COLUMBIA CIRCUIT

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to resume consideration of the following 
nomination, which the clerk will report.
  The assistant legislative clerk read the nomination of Patricia Ann 
Millett, of Virginia, to be United States Circuit Judge for the 
District of Columbia Circuit.
  The PRESIDING OFFICER. Under the previous order, there will be 30 
minutes of debate equally divided and controlled in the usual form.
  The Senator from Iowa.
  Mr. GRASSLEY. Mr. President, I know we are not voting on this 
nomination today. I think it will be tomorrow. But I do not think there 
will be time to make remarks tomorrow, so I am expressing not only my 
opposition to the nominee being confirmed but also the bigger issue of 
whether or not there should even be any additional judges put on the DC 
Circuit.
  Approximately 6 months ago, on June 4, 2013, the President 
simultaneously nominated three people for the DC Circuit. Everyone knew 
then, just as they know now, that these judges are not needed. The DC 
Circuit has the lowest caseload in the country by far, based on the 
standards that the Democrats established just a few years ago when a 
Republican was in the White House. In fact, the caseload on the DC 
Circuit is so low that on April 10, 2013, approximately 2 months prior 
to these nominations, I introduced legislation together with every 
Republican member of the committee to eliminate one seat of the DC 
Circuit and move two others to different circuits where they had bigger 
caseloads and needed additional help. That would be the sensible way to 
address this issue. Don't spend $1 million in taxpayers' money, per 
year, per judge, on judgeships that are not needed.
  That is common sense, especially when the judges currently on the 
court say--and I quote one of them--in a letter:

       If any more judges were added now there wouldn't be enough 
     work to go around.

  Don't waste $3 million a year. Instead, simply move the seats to 
where they are needed, where there is a much bigger caseload. That 
would be the sensible and the good government approach.
  But being sensible and good stewards of taxpayer dollars is not what 
the other side had in mind when they hatched this scheme. Far from it. 
No, the administration's move here was clear from the very beginning. 
They knew they could not pass their liberal agenda through a divided 
Congress. The American people had already rejected that agenda at the 
ballot box. But the administration still runs the Federal agencies, and 
through the agencies the administration can ignore the will of the 
American people and continue to pursue a job-killing agenda.
  It doesn't matter that the American people do not want their 
government to pass cap-and-trade fee increases. The administration will 
simply force it upon the American people anyway through the 
Environmental Protection Agency.
  It doesn't matter that the employer mandate penalty under ObamaCare 
does not apply to the 34 States that have not created insurance 
exchanges. The administration forced the employer mandate upon the 
American people anyway through an IRS regulation.
  This has been the plan of the administration. It cannot get its 
liberal agenda through the Congress, but it has saddled the American 
people with its job-crushing agenda anyway through agency regulation.
  But there is a catch to this scheme, a very big catch. Agency 
decisions are reviewed by the Federal judiciary. That happens to be our 
very independent third branch of government. So for this scheme to 
work, the White House needed to stack the DC Circuit with judges who 
were rubberstamps for its agenda.

  As a result, the administration decided to ram their agenda through 
the agencies and simultaneously stack the DC Circuit with judges they 
believe would rubberstamp that agenda. That is why, on the very same 
day the President made these three nominations, I said:

       It's hard to imagine the rationale for nominating three 
     judges at once for this court given the many vacant emergency 
     seats across the country, unless your goal is to pack the 
     court to advance a certain policy agenda.

  During the last few months we have debated this issue, and throughout 
the debate the other side has tried their best to obscure the 
objective. They have manipulated caseload statistics in an effort to 
deny the obvious: Judges are not needed and will not have enough work 
to go around as is.
  They twisted the words of the administrative office of the U.S. 
Courts. They claimed that the Chief Justice of the United States 
believes these judgeships are needed, when of course statistics show 
that is not remotely close to being true. They even stooped so low as 
to accuse Republicans of gender bias. But no matter how the other side 
manipulated the data or tried to conceal their agenda, they could not 
overcome the simple and basic facts everyone knew to be true; that is, 
that under the standard established by the Democrats under the Bush 
administration, these judgeships are not needed and should not be 
confirmed.
  As a result, when the Senate considered these nominations, it denied 
consent. The other side lost the debate. Under normal circumstances, 
that would have been the end of this matter but not this time. This 
time there is a Democrat in the White House, not a Bush in the White 
House, and a Republican minority in the Senate.
  The caseload statistics that carried the day in 2006 when we had a 
Republican majority in this body no longer matter to today's Democratic 
majority. This time apparently there are only three Members of the 
majority who care more for the Senate as an institution than they do 
for their party or short-term political gain. Of course, the biggest 
difference is that this time what is at stake is a radical agenda and 
the other side's effort to remove any meaningful check and balance on 
that agenda.
  In short, it is ObamaCare. In short, it is climate change regulation, 
and the method for doing it is Presidential rule by fiat. The other 
side decided they were no longer willing to play by the rules they 
established and pioneered in 2006 when we had a Republican President 
and a Republican majority in the

[[Page S8553]]

Senate. They lost the debate, so a couple weeks ago they changed the 
rules of the game in the middle of the fourth quarter. They triggered 
the so-called nuclear option because salvaging ObamaCare and insulating 
cap-and-trade fee increases from meaningful judicial review were just 
two important ideological battles that this administration wanted to 
get done one way or the other.
  But, as I said, the end game for this scheme has been clear ever 
since it was formulated. So I wasn't surprised to read media accounts 
confirming the reasons the Democrats broke the Senate rules in order to 
get these nominees confirmed.
  For instance, on November 23, The Hill newspaper ran an article with 
this headline: ``Filibuster change clears path for Obama climate regs 
crackdown.'' The Hill newspaper had this to say:

       Green groups might be the biggest winners from Senate 
     Democrats' decision to gut the minority party's filibuster 
     rights on nominations. Their top priority--President Obama's 
     second-term changes on climate change--is likely to have a 
     better shot at surviving challenges once Obama's nominees are 
     confirmed for the crucial U.S. Court of Appeals for the 
     District of Columbia.

  The Washington Post wrote:

       Democrats say the shift in the court will be especially 
     important given that Obama's legislative proposals have 
     little chance to prevail in the GOP controlled House. . . . 
     The most contentious issues likely to face the appeals court 
     are climate change regulations being pursued by the EPA. . . 
     . The measures represent Obama's most ambitious effort to 
     combat climate change in his second term--coal-fired power 
     plants are a key source of emissions--at a time when such 
     proposals have no chance of passage in Congress.

  The same Washington Post article acknowledged the importance of 
removing the judicial check on ObamaCare.

       The court is expected to hear a series of other legal 
     challenges as well, including lawsuits related to elements of 
     the Affordable Care Act, the Consumer Financial Protection 
     Bureau and new air-quality standards.

  Here is how one liberal environmental media outlet described the 
change:

       When the Senate Democrats blew up the filibuster Thursday, 
     they didn't just rewrite some rules. They struck a mortal 
     blow to a tradition that has blockaded effective action on 
     climate change.

  According to media reports, it was these same liberal interest groups 
that pressured the majority leader to break the rules in order to 
change the rules. According to The Hill newspaper:

       [The] Sierra Club was part of a coalition of liberal groups 
     and unions that pressured Senate Majority Leader Harry Reid 
     to limit the use of the filibuster through a majority vote.

  So if there was any doubt whatsoever about why the other side took 
such drastic action--changing the very historic process of the Senate--
there should not be any doubt any longer. The other side could no 
longer stand up to the more extreme wing of their party. Under pressure 
from those interest groups, the other side willy-nilly tossed aside 
some 225 years of Senate history and tradition.
  What is more, by joining the majority leader and voting to break the 
rules, every Senator who did so empowered the President to install 
judges whose appointments are specifically designed to rubberstamp the 
President's regulatory agenda. No one is going to be able to hide from 
this vote. Not only is this a power grab, it is much more than that. It 
is the erosion of a constitutional principle which has been established 
since 1787--and stated very clearly in the Federalist Papers--why the 
separation of powers is so important to our government. It was to make 
sure that no one person has all the power. The White House is so 
committed to a policy agenda that the American people don't want that 
it co-opted the majority of the Senate in its scheme to remove a 
meaningful judicial check on the executive branch of government and 
their agenda.
  This is about a White House trying to rig the game so it can impose 
its cap-and-trade fee increases on the American people even though the 
American people don't support it. This is about a last-ditch effort to 
salvage ObamaCare and regulations, such as the IRS rule imposing the 
employer mandate penalty in 34 States, which is in direct conflict with 
the statute. How will they do it? By installing judges the White House 
believes will rubberstamp their edict.
  I urge my colleagues to stand up to this White House, stand up to the 
radical liberal interest groups. Don't cast your vote for cap-and-trade 
fee increases and for judges that will rubberstamp that and don't cast 
another vote for ObamaCare. Instead, vote against this nomination. It 
is not needed.
  I yield the floor.
  Mr. DURBIN. Mr. President, I rise in support of the nomination of 
Patricia Millett to serve on the D.C. Circuit, the second most 
important court in the nation. Ms. Millett, who is currently in private 
practice, is recognized as one of the leading appellate lawyers in the 
country. She has argued 32 cases before the Supreme Court and dozens 
more in other appellate courts.
  Ms. Millett served in the Solicitor General's office under both 
Democratic and Republican presidents. Seven former Solicitors General 
including prominent Republicans Paul Clement, Ted Olson and Ken Starr--
sent a letter in support of Ms. Millett saying she ``has a brilliant 
mind, a gift for clear, persuasive writing, and a genuine zeal for the 
rule of law. Equally important, she is unfailingly fair-minded.''
  At her hearing before the Senate Judiciary Committee, no Senator 
questioned Ms. Millett's qualifications or fitness for the Federal 
bench. She is simply an outstanding nominee. Ms. Millett is also a 
proud product of Illinois. She grew up in Marine, a small town in the 
southern part of the state. Her mother was a nurse and her father was a 
history professor at Southern Illinois University--Edwardsville.
  Ms. Millett graduated summa cum laude from the University of Illinois 
and magna cum laude from Harvard Law School. She clerked for 2 years 
for Judge Thomas Tang on the Ninth Circuit Court of Appeals.
  She is part of a military family. Her husband Robert King served in 
the Navy and was deployed as part of Operation Iraqi Freedom.
  Ms. Millett also comes highly recommended by distinguished members of 
the Illinois legal community.
  I received a letter from Patrick Fitzgerald, the former U.S. Attorney 
for the Northern District of Illinois, expressing ``strong support'' 
for Ms. Millett's nomination and urging ``prompt consideration of her 
candidacy on the merits.''
  I also received a letter from 28 prominent attorneys including former 
Illinois Governor James Thompson, a Republican, and current Illinois 
State Bar Association president Paula Holderman.
  They expressed their strong support for Ms. Millett, saying that 
``she embodies the evenhandedness, impartiality, and objectivity 
required for the federal judiciary, as evidenced by her more than 10 
years of service in the Solicitor General's office in both the Clinton 
and Bush Administrations.''
  The bottom line is that Ms. Millett is an outstanding nominee with 
broad support from across the ideological spectrum. There is no 
question that she is well-qualified to serve on the bench, and she will 
serve with distinction.
  I urge my colleagues to support her nomination.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Florida.

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