[Congressional Record Volume 159, Number 175 (Wednesday, December 11, 2013)]
[Senate]
[Pages S8764-S8770]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




    NOMINATION OF DEBORAH LEE JAMES TO BE SECRETARY OF THE AIR FORCE

  The PRESIDING OFFICER. The clerk will report the nomination.
  The assistant legislative clerk read the nomination of Deborah Lee 
James, of Virginia, to be Secretary of the Air Force.
  The PRESIDING OFFICER. Pursuant to the provisions of S. Res. 15 of 
the 113th Congress, there will now be up to 8 hours of postcloture 
consideration of the nomination equally divided in the usual form.
  If no one yields time, time will be equally charged.
  The Senator from Alabama is recognized.


                          Rules Of the Senate

  Mr. SESSIONS. Mr. President, we are definitely proceeding in an 
unusual manner at this point in time in the history of the U.S. Senate. 
We are moving under regular order. Nominations are being processed in 
regular order. Votes are being held. Debate is being shut off by the 
appropriate procedures. But it is unusual from what we have been doing 
all year and what we have been doing historically. So I guess the 
question is, how did we get to this point? What has happened in the 
Senate that has caused the difficulties we now have?
  I believe it is becoming clear to our colleagues that actions that 
have been taking place in recent days have altered the very nature of 
the Senate, have eroded the collegiality that makes this body work on a 
daily basis, the kind of actions in which people unanimously agreed to 
allow things to happen different from the regular order, that allowed 
things to be proceeded up and go faster and move forward. It has been 
done on a regular basis.
  But we have had a conflict, an alteration in the rules of the Senate 
that is so serious that it impacts the very nature of this institution 
and causing great concern. We have a lot of new Members in the Senate, 
and they have not seen how the Senate operated just in the--what?--16, 
17 years I have been here. I have seen the great change, and it is a 
concern to me, and it is even different from that more classical 
operation before I came here.
  It is not healthy, it is not good, and it cannot be allowed to just 
happen without any discussion, without any full understanding of how 
the majority leader of the Senate has accrued to himself powers never 
before allowed to be held by the majority leader of the Senate. It has 
altered the very nature of the debate here and the processes that 
involve our constitutional responsibility.
  So I believe we need to talk about it. I believe we need to 
understand it, and somehow we need to alter what has happened.
  I remember when I came to the Senate. Senator Robert Byrd loved the 
Senate. Senator Robert Byrd said there are two great Senates: the Roman 
Senate and the U.S. Senate. He gave all of us new Members a lecture 
about the great heritage of which we are a part. He wrote a book on the 
rules of the Senate.
  We have had rules for quite a number of years. The standing rule of 
the Senate is rule XXII. It is a clear, simple directive passed by two-
thirds of the Members of the Senate duly chosen and sworn.
  This is what rule XXII says. It is not confusing. It is very clear. 
It was adopted by two-thirds of the Senate.
  It says: A motion signed by 16 Senators--that is, to negotiate 
something, to shut off debate, you have to have 16 Senators to file a 
motion--a motion signed by 16 Senators to bring to a close the debate 
upon any measure, motion, or other matter pending before the Senate--
any measure, motion, or other matter pending before the Senate, which 
includes nominations--shall be decided by three-fifths of the Senators 
duly chosen and sworn, except on a measure or motion to amend the 
Senate rules, in which case the necessary affirmative vote shall be 
two-thirds of the Senators present and voting.
  Crystal clear. The rules of the Senate are to be decided by two-
thirds. To bring to a close debate upon any measure, motion or matter 
pending before the Senate requires three-fifths, 60 votes out of our 
100. That is the rule of the Senate. That has guided us for 
generations. It has worked well. I am going to talk a little bit about 
this, and I could go into even greater detail and say that the process 
has been working very well.
  Senators on the Republican side have treated the nominees of 
President Obama very well, far better than were the nominations of 
President Bush when he came here in 2000. When I was here in 2000, his 
nominees were hammered, filibustered for the first time in history, 
held by some of the same people who now with great outrage attack those 
who have blocked and filibustered a few of the Obama nominees--just a 
few.
  So it is really almost unbelievable to me that we are at this point 
of the rules process of the Senate. So how did it happen? Precisely 
what happened? I think the American people need to know.
  Senator Reid, apparently irritated that he was not able to have three 
judges confirmed to the District of Columbia Circuit bench, decided 
that he was going to change the rules. Senator Schumer said he was 
going to get those nominees confirmed one way or the other.
  I am the ranking Republican on the budget committee. This country is 
spending money it does not have on things it does not need on an 
absolutely regular basis. We are wasting taxpayers' money. So the 
actions of the President and the Senate majority that filled three 
seats on the District of Columbia Court of Appeals were scrutinized.
  In my opinion, I believe it is uncontestable that these positions did 
not need to be filled. They just didn't. They do not have enough work 
on that court to need these judges. The average caseload per judge on 
the DC Circuit was 149 per judge--149. Well, what does that mean? Is 
that a lot or not a lot? It is not a lot. It is the lowest number by 
far of any circuit in America. The caseload has been steadily 
declining.
  I have been chairman in the Judiciary Committee of the court 
subcommittee that deals with these issues. Senator Grassley was there 
before I came. I have been ranking member and am now ranking member on 
that subcommittee. We have been watching the DC Circuit. The cases 
continue to decline. So with 8 judges now active on that court, they 
are down to 149 cases per judge. Well, is that a lot? How about my 
circuit, the Eleventh Circuit Court of Appeals in Atlanta, GA, covering 
Florida, Alabama, and Georgia? How many cases do they have per judge? 
Hold your hat: 740. That is how many my court handles per judge.
  They say they do not need more judges. In fact, they prefer not to 
have the court get so large that there will not be a coherent court and 
be able to have consistency in the law. That has been their tradition 
for many years, more than 20 years. They do not want more judges. 
Actually, we know that the judges on the DC Circuit have said they do 
not need more judges. We know they took off last summer. They take off 
long summers, unlike any other court of appeals, from May 16 to 
September 16. They did not hold court from May 16 to September 16.
  The next lowest circuit in America has almost twice as many cases per 
judge as the DC Circuit. I know that our frugal Presiding Officer, as 
Governor of Maine, as part of that Yankee frugality for which they are 
famous, he knew how to manage his money when he was Governor. It costs 
$1 million a

[[Page S8765]]

year, we are told, to maintain a Federal judgeship. That is a lot of 
money. So we are adding three judges to the DC Court of Appeals who 
absolutely are not needed--absolutely are not needed.
  This Senate refused to confirm them. We voted not to confirm these 
judges and blocked moving the final vote. They lacked the three-fifths 
vote to confirm those judges. But Senator Schumer said: We are going to 
get them done one way or the other. We do not worry about principle. We 
do not worry about law. We do not worry about the heritage of the 
Senate. We do not worry about whether we need those judges. We are 
going to put them in anyway.
  Well, I did not pay much attention to that. I did not think he was 
serious about that, I have to tell you. I thought our Democratic 
colleagues would really understand that we have confirmed almost all of 
the President's nominees. Only two or three prior to that had failed 
out of the whole 6 years he has been in office. President Bush lost 
five on 1 day--good nominees--for no other reason than they had a 
classical view of restraint on the part of a judge.
  We do not need these judges. As a matter of fact, Senator Grassley 
and I offered and passed legislation that moved one of the DC Circuit 
judges to the Ninth Circuit Court of Appeals in California, a liberal 
circuit. But that circuit wanted more judges and appeared to need more 
judges to handle the caseload.
  We moved one. We have legislation to move others to someplace in 
America where they are needed because we are going to have to fill and 
add some judgeships around the country because, unlike the DC Circuit, 
some of the areas in our country are adding cases and are needing 
judges and are short of judges. So good management simply says that you 
take them from where you do not need them and you move them to places 
where you do need them and you serve the interests of the American 
taxpayer and you protect the money they send us. We have a holy charge 
to protect every single dollar extracted from every American.
  The former Speaker, the Democratic leader in the House, Nancy Pelosi, 
said: We have cut all we can cut. We cannot find any more waste in our 
government. There is nothing left to cut.
  Well, there are places left to cut. These three judges on the DC 
Circuit are just one of thousands, tens of thousands of places we could 
save the money we are spending that we do not need to be spending, that 
does not help America, does not make us stronger and does not benefit 
the rule of law.
  So how did it happen? What happened that so upset Senator Reid? The 
majority leader is one of 100, puts his britches on one leg at a time. 
He does not get to dictate to this Senate. He gets to stand right 
there, and because his Presiding Officer is selected by Senator Reid--
he is the majority leader--the Presiding Officer will always recognize 
him first.
  It is done when Republicans have the majority. It is done when the 
Democrats have the majority.
  He asked for recognition and received it. This is how he changed the 
rules of the Senate that require a three-fifths vote to shut off 
debate. Remember, a change of the rules of the Senate is supposed to 
take a two-thirds vote, 67 votes.
  He said to the Presiding Officer at that point, the President pro 
tempore of the Senate, Senator Patrick Leahy, chairman of the Judiciary 
Committee, a man who is most experienced in all of these matters--this 
is what Senator Reid said, and it makes the hair on the back of my neck 
stand up.
  I talked to a reporter, an experienced, well-known reporter, the 
other day. He was talking about it, and he said--he didn't ask for 
confidentiality. He probably used my name.
  He said: I didn't think he was going to do it, and when it started, 
everybody in the newsroom just stopped and we looked.
  Wow. Because this was a big deal. This was a huge event in the 
history of the Senate. This is what Senator Reid said and everybody 
needs to know how it happened.
  He said, ``I raise a point of order that the vote on cloture under 
rule XXII for all nominations other than for the Supreme Court of the 
United States is by majority vote.''
  The vote on cloture to shut off debate, he moved that under rule 
XXII. He said ``under rule XXII'' that the vote on cloture to shut off 
debate for all nominations ``other than for the Supreme Court''--he 
thought of that, I suppose--``is by majority vote.''
  Rule XXII says, `` . . . a motion signed by sixteen Senators, to 
bring to a close the debate on any measure, motion, other matter 
pending before the Senate . . . shall be decided . . . by three-fifths 
of the Senators duly chosen and sworn.''
  The majority leader of the Senate, knowing precisely what rule XXII 
said, stood right there and asked the chairman, the Presiding Officer, 
to pretend that this is not a rule of the Senate and that only a 
majority vote is needed. That is what he said.
  What did Senator Leahy say? The transcript shows Senator Leahy is the 
President pro tempore of the Senate. He said, ``Under the rules, the 
point of order is not sustained.''
  It is exactly right. Senator Reid's petition that it ought to be 
decided by a majority vote couldn't be sustained because it is 
absolutely in violation of the rules of the Senate. Senator Leahy so 
ruled, as he was advised, I am sure, by the Parliamentarian, also 
selected by Senator Reid.
  There is no question about this. There is absolutely no question 
about it.
  But there is this little deal that on a matter where a 
Parliamentarian rules on matters dealing with the rules of the Senate, 
somebody can ask and appeal the ruling of the Senate, an appeal of the 
whole Senate to check to decide whether the Parliamentarian is correct.
  They used this corrective measure to allow the will of the Senate to 
interpret the rules of the Senate, to break the rules of the Senate. 
That is what they did, lemming like, my Democratic colleagues, surely 
not understanding what they did, one by one they walked up and voted or 
voted from their chairs in support of Senator Reid.
  All but two of the Democratic colleagues voted--over 50, a majority 
voted--to say that the rules of the Senate don't mean what they say and 
they will just ignore them.
  The net effect was that once that was ruled, then cloture could be 
shut off, debate could be shut off with a simple majority. That became 
the rule of the Senate in a way contrary to the rules of the Senate 
which say ``--except on a measure or motion to amend the Senate rules, 
in which case the necessary affirmative vote shall be two-thirds. . . . 
''
  To change that rule of the Senate that says it takes 60 votes to shut 
off debate through a majority to shut off debate would take two-thirds. 
They just ignored that.
  The reason it is so important is every other rule, tradition, and 
standard of the Senate is at stake. A very wise Senator, Carl Levin of 
Michigan, a longtime Democrat, chairman of the Armed Services Committee 
on which I sit, I have watched him work all the years I have been in 
the Senate and I have been very impressed. He and I don't agree on many 
of the substantive issues and how we approach spending, taxes, and 
regulations. He knows how to preside in a committee to give everybody a 
fair shake. He said we shouldn't do this. He pleaded with his 
Democratic colleagues not to vote in this fashion.
  He said that if you can change a rule in this fashion, if you can 
alter the rules of the Senate this way, there are no rules. There is no 
power, no protection for the minority, other than the simple power of 
the majority vote. There is nothing in this Senate if we follow this 
precedent that can't be changed by a simple ruling of an appeal of the 
chair and all those rights that have always protected the minority.
  That is a very dangerous thing. It was played with and talked about 
by the Republicans on one occasion when the entire ground rules of the 
Senate for confirmation of judges was altered. We found ourselves with 
a stunning filibuster of 10 of the first 12 nominees President Bush 
submitted for the court of appeals, but it was never executed. An 
agreement was reached to alter that.
  Indeed, when this tension rose at the beginning of this year, Senator 
Reid agreed that changes in the process gave the majority party and the 
President

[[Page S8766]]

more power to expedite nominees and gave them more power over the 
minority. He was able to secure that agreement in a way consistent with 
the heritage of the Senate. He said at that time he was not going to 
seek to change the rules of the Senate again.
  I wish to say this should not be looked at as a little matter. It is 
a very big matter. I am extraordinarily troubled by it. That is part of 
what is happening now.
  I wish to mention one more thing on a chart I have that talks about 
the caseload for the DC Circuit. Look at these numbers. This is the 
Eleventh Circuit, 720 cases per judge, not 740, as I said earlier. Look 
at these caseloads per judge until you get down to the DC Circuit, 149 
per judge.
  We didn't need to add three judges. The existing, active judges, not 
counting the vacancy, just 8 active judges, only have 149 cases per 
judge. We don't need to add one new judge.
  The President was determined to try to shove that through, and that 
he did, and got us into all of this turmoil when the Senate didn't 
agree--three-fifths of the Senate not agreeing to move forward to a 
final vote resulting in the lack of confirmation of those judges. That 
is where we are.
  In the Fifth Circuit in Texas, there are 488 cases per judge; the 
Ninth Circuit in California, 472 cases per judge. The Second Circuit, 
handling some of the more complex cases in America, Manhattan in New 
York, there are 440 cases per judge. We can see the caseload averages 
around the country.
  The average is 384 cases per judge. That is about 2\1/2\ times the 
number of cases that the DC Circuit has per judge. That is why there 
were objections to the nominees. I said when this happened most of 
these nominees would probably be confirmed, because if it hadn't been 
for the low caseload, that there was not a question--I suggested, 
without going into detail, the nominees were probably qualified and it 
would be unlikely that they would be filibustered because of lack of 
qualifications, although I was probably wrong in that for at least one 
of them. Pillard's nomination represents a judge whose views on the law 
are so outside the mainstream that I don't believe, having studied that 
record subsequent to those remarks, she should have been confirmed on 
the merits.
  My basic view, as I stated from the very beginning, is not a question 
of the merits of the nominees. The question was do we need to spend $3 
million a year for these three judges when we have other circuits that 
need judges and they don't need them there.
  I will share with you what President Obama was looking for in his 
nominee.
  Ms. Pillard went to Yale and Harvard. She also spent 6 years with the 
American Civil Liberties Union and the NAACP Legal Defense and 
Education Fund. She is a long-time member of the very liberal activist 
American Constitution Society. They believe in activist judges and 
advocate for that. In recent years an activist conservative legal 
movement has--she has been a professor at Georgetown. She has written 
many controversial articles and has a record exclusively devoted, it 
seems to me, as a very extreme, progressive, judicial philosopher who 
says judges do not need to be objective and are empowered to read the 
meanings of the Constitution to advance an agenda. It seems to be in 
harmony with President Obama's openly stated views about what he looks 
for in judges, and that is a judge who is empathetic. He has empathy.
  What does that mean, ``empathy''? What it means is he wants a judge 
not committed to law. That is what it means.
  What is empathy? Feelings, ideology, politics--that is what it sounds 
like to me.
  The American heritage of law is based on objective criteria, the rule 
of law. Judges take an oath to serve under the Constitution of the 
United States and the laws of America. They are under them. They serve 
the law. They don't write the law. They don't amend the law. They don't 
change the law. They don't change the meaning of words in our laws or 
our Constitution to meet some empathetic feeling they have, some 
political agenda they have. And the American people are on to it. They 
know this is happening too much. They do not like it. They want it to 
stop. They do not want this kind of judge on the bench.

  But many of our great law schools, many of our judicial philosophers 
and writers think this is all great. They think we need this kind of 
thing. We need to advance the law. That is what they say, and the hero 
to them is the one who comes up with some gimmick to reinterpret the 
plain meanings of our Constitution to have it say what they want it to 
say at a given time--to help decide a lawsuit they would like to see 
helped to advance an agenda.
  It is really part of a post-modern approach to life, to law. Senator 
Reid's nuclear option execution is also a post-modern power thing. It 
is the result, it is the end, it is the ideology, it is the revolution. 
Advance the cause. No rules apply.
  Some may say: Jeff, you are too hard. You shouldn't say that. That is 
exactly what it is, I have to say, in my belief. Remember, in 2001, 
when President Bush got elected, there were virtually no filibusters. A 
few judges had problems that were held up for a while, but there were 
no filibusters of judges. The Democrats met in retreat--Laurence Tribe, 
Marcia Greenberger, Cass Sunstein were there, according to the New York 
Times, and they came out of the retreat with a decision, and the 
decision was to alter the ground rules of confirmations. They 
immediately accepted the two nominees President Bush had submitted that 
were Democrats. One of them hadn't been confirmed under President 
Clinton so he renominated them. They took those two and confirmed them. 
They blocked ten great judges, great nominees, and this went on for 
over a year.
  There was vote after vote after vote, and they steadfastly--Senator 
Schumer, the leader--blocked those judges from being voted on by a 
filibuster, because there weren't 60 votes to shut off debate to effect 
cloture. So this went on for an extraordinary time, and at some point 
the threat was that the nuclear option would be executed. So a group of 
Senators met and said: Look, let's not change the rules of the Senate 
by breaking the rules of the Senate. Let's reach an agreement. And this 
is what they said. They said: You shouldn't filibuster judges any more 
unless there are extraordinary circumstances to justify it. Normally, 
you should just vote yes or no for the judge. In most cases yes or no 
should be the vote, and serious filibusters of nominees should not 
occur except for extraordinary circumstances.
  I thought that was OK. I didn't really think we should filibuster, 
period. But it seemed to be a reasonable compromise in a political body 
that would do the right thing for the confirmation process. We have 
been operating under that since 2002, I guess it was when that 
agreement was reached. I thought it was pretty good, actually. I was 
sort of proud of the way that came out. Therefore, President Obama has 
had very few filibusters.
  But when this gang of 14 reached their agreement, and it sort of was 
adopted by the Senate, there were ten judges being filibustered out of 
the first batch of judges President Bush had nominated. What came of it 
was that five were confirmed and five failed. So on one day, five 
judges were defeated without, in my opinion, anything like a 
justifiable basis to defeat those judges. But that is the way it was. 
We agreed to it. Five judges were blocked and never got to serve; five 
more were confirmed.
  And who orchestrated that? It was Senator Reid. He complained 
mightily when anybody would even think about ending the right to 
filibuster a judge, and Senator Schumer was leading the filibusters.
  So when the three judges that were nominated for absolutely unneeded 
seats on the DC circuit were blocked, you would have thought this was 
the first time in history anybody had ever been blocked from being a 
judge in this Senate. And they went and changed the rules of the 
Senate. It is just unbelievable to me that we are at this point.
  I truly believe that President Obama's nominees were treated fairly. 
I believe they have been evaluated fairly, and only a very few have 
been blocked.
  On one day Senator Reid filed cloture on 17 nominations. It was 
totally set up, and do you know what he said? He said it was because we 
were filibustering these. Every time he filed cloture he said a 
filibuster was occurring.

[[Page S8767]]

None of these judges were blocked. All of these judges got confirmed. 
There was not even a vote on cloture for the 17. Yet when he claimed 
there was some unprecedented number of filibusters in the Senate, he is 
counting that. There has not been this situation.
  So this is part of the tension we are involved in, and we remember 
that brooding over all of this is the Affordable Care Act--Obamacare--
and how that legislation was opposed by a substantial majority of 
Americans, consistently 2 to 1. Virtually 2 to 1 consistently the 
American people rejected ObamaCare. They told this Congress not to pass 
it. We did everything we could on the Republican side to keep it from 
passing. We pleaded with our colleagues not to do this.
  But, oh no, they had to pass it. President Obama wanted it, and they 
were going to pass it. We would find out later what was in it. That was 
literally the gist of what happened.
  Senator Scott Brown from Massachusetts--liberal Massachusetts, the 
home of Ted Kennedy, who believed in government's involvement in health 
care--was elected on a promise in Massachusetts to be the vote to kill 
it. There was a vacancy. Senator Kennedy's death had created this 
vacancy, and Senator Brown campaigned to kill and be the vote that 
would deny the Democrats the 60th vote, in essence.
  So what did they do? They used the reconciliation budget process to 
pass this monumental policy change in America in a way that kept Scott 
Brown--and the American people, through the electoral process--from 
ending this piece of legislation that put us in the position we are in 
today, where you don't get to keep your doctor, you don't get to keep 
your health care, where deductibles are going through the roof, where 
the price of insurance is going up, where people are not being hired, 
where two-thirds of the people who get a job this year in America only 
get a part-time job, which is clearly being driven by business 
interests in trying to avoid being caught up in the obligations of the 
Affordable Care Act. But the Democrats insisted.
  Senator Reid has used every parliamentary maneuver possible to block 
any votes that would actually fix this bill or alter it in any way.
  So I just have to say we are at a point where we have to wonder 
whether democracy is happening in the Senate.
  So we go back home. People get elected to the Senate. They campaign, 
and they say they want to go to Washington and change ObamaCare. Have 
we had a single vote this year to change ObamaCare? No, because Senator 
Reid knows how to fill the tree and block any votes and keep it from 
happening. We are not voting on it.
  The House has repeatedly passed all kinds of legislation and sent it 
to the Senate, supposedly to cause us to respond to it, to review the 
legislation, to have votes, offer amendments and see what kind of 
response we would have to fixing the problems with ObamaCare. But what 
happens? Senator Reid obstructs that process. He does not allow these 
votes to occur. They might as well have thrown their legislation down 
the well.
  What good is it for the House to send a bill to the Senate if it 
never gets brought up on the most important issue facing our country 
today--health care? We can't even have a debate about it or vote about 
it. Is this the great Senate that Robert Byrd referred to?
  What about the Defense bill? The Defense bill is over here now. It 
spends over $500 billion--about half of the discretionary spending the 
United States Congress spends. What are we told? We are told the Senate 
is too busy. We can't bring up the Defense bill and have an amendment. 
No more amendments. The two little amendments that were voted on in an 
entire week are all we are going to get. No more amendments will be 
accepted. We are going to pass the bill as it is or we can vote no on 
it.
  Why? Why? Because Senator Reid knows there are some very important 
issues involved in the Defense bill and they are controversial. People 
have different views about them, and some people on his side of the 
aisle don't want to vote on those because they have to stand up before 
their constituents and before America and before the world and actually 
cast a vote and be accountable for their tenure in the Senate.
  Members on this side, such as Senator Tom Coburn, have ideas to fix 
the Defense Department and to save money. But Senator Reid won't give 
him a vote on it, and he objects. Senator Reid says: Senator Coburn, 
you are obstructing. You are one of those Republican obstructionists. 
You don't get a vote, Senator Coburn. I decide who votes here. I have 
filled the tree. I know how to fill the tree. I am the majority leader, 
and if you want a vote, you have to ask me, and I'm not giving you any 
more votes. I have had enough of you guys.
  That is kind of the way it has been. It is the way it has been with 
the ObamaCare bill and with the Defense bill. The very idea that 
national security is at stake and we have a $500 billion Defense bill--
now, I'm on the Armed Services Committee, and we tried to work 
together. We basically had an almost unanimous vote on it. Last year we 
had a unanimous vote on the Defense bill. But there are still matters 
we carry to the floor with the full understanding there will be debate 
and votes on those disputed issues and the whole Senate would get to 
vote on them. They are not being allowed to vote on those.
  This is unusual, colleagues. This has never happened in the history 
of the Senate. There was a study that found in the last 28 years 
previous to Senator Reid, the tactic of filling the tree to limit 
debate was done 40 times. Since Senator Reid has been the majority 
leader, he has done it 77 times. It is every time, really. He is in 
complete control of the amendment process in the Senate.
  We had a Democratic colleague who said he thought he had to get 
approval of the Republican leader, Senator McConnell, before he could 
get his amendment voted on. Why? Well, Senator Reid says the 
Republicans filed 20 amendments. Senator Reid says: You can only have 
three. So he starts with Senator McConnell, and Senator McConnell says: 
That is not enough, Senator Reid. You can get five, but I want to 
approve them. I suppose Senator McConnell may say: How many are you 
going to have? I want to know what they are before I reach an agreement 
with you.
  So I suspect it may be true that we have Democratic Senators having 
to ask the minority leader of the Senate for approval to get their 
amendments up.
  That is not the way this should operate. It has never operated that 
way. Our history is open and free debate, unlimited debate in which the 
great issues of our time can be discussed here and actually voted on. 
And our constituents back home, if they don't like the way we are 
voting, can vote us out of office and send somebody else up here. So 
politics is driving it. There is no other reason.
  The contention is that there wasn't enough time to vote on the 
Defense bill, but the Defense bill was on the floor an entire week. We 
could have had 10 votes a day, 15 votes a day easily on the Defense 
bill.
  Senator Inhofe, the ranking Republican on the Armed Services 
Committee, told Senator Reid he had limited the number of amendments 
that Senators on our side had to 25, and those could have been done 
easily in a week. But what was also true, as Senator Inhofe noted, was 
that a lot of those votes would actually never occur because a person 
would realize they didn't have the votes to pass, the manager of the 
bill would agree to some of the amendments, or something else would 
happen. So it is very unlikely that many votes would have been cast. 
But that is what we have done in the past. We have had 2 and 3 weeks of 
time spent on the Defense bill, and we have had multiple amendments--
30, 40, 50 amendments--and that has just ended.
  So here we are, at a time when our country has a crisis on its hands, 
the American people are suffering from a massive takeover of health 
care that was rammed through this body against their will, and they 
still remain steadfastly opposed to it. Those of us who share those 
same concerns and want to change and alter this bill that is damaging 
to our economy, that is damaging health care, that is hammering the 
middle class, we can't even get votes on it because we have a leader

[[Page S8768]]

who has dictated how things are done here.
  This has to end. It has to end. It cannot continue. I don't see how 
any Member of this body can go back home if they are a Democrat and 
say: I couldn't get up an amendment.
  Why?
  Well, Senator McConnell wouldn't let me.
  I go back home to my State, and others go back home to their States, 
Senator Toomey goes back to Pennsylvania and says: I offered all these 
amendments to improve ObamaCare.
  His constituent says: Well, did you vote on it?
  No.
  Why not?
  Senator Reid wouldn't let me.
  Where did this become part of the history of our country? Is this 
what we teach our children in grade school about how democracy is 
supposed to work? No. It has to end.
  I appreciate the opportunity to share these remarks tonight. We are 
at a point where this Senate has to stand, reverse the trends that have 
been going on, and ensure that we operate in an open way. People have 
to vote and vote and vote so they can be held accountable to the people 
who sent us here. And when we make people mad, they have every right to 
vote us out of office. We don't have any right to come here and hide 
under our desks, not to expose ourselves, not to let people know how we 
really feel and how we have really been moving the country.
  So I think the tea party rightly has concerns about that kind of 
thing, and I hope we can make progress to improve this situation that 
is essential for our country.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. TOOMEY. Mr. President, I rise as we consider the nomination of 
Deborah Lee James as Secretary of the Air Force, and I wish to touch on 
some of the points that were made by the Senator from Alabama.
  I wish to state how much I appreciate his leadership, especially as 
the ranking member of the Budget Committee, his consistent leadership 
and fighting for fiscal discipline and putting our country back on a 
sustainable fiscal path, his commitment to an open amendment process, 
the opportunity to have vigorous debate in the Senate so that this body 
can work its will, and, of course, his work on the Armed Services 
Committee. I appreciate all of that, and I appreciate him being here 
tonight.
  I do think it is important we have a discussion about how we got 
here, a discussion about the circumstances that have led to this 
completely unprecedented moment.
  In the entire history of the Republic, we have never found ourselves 
in this circumstance where a majority party has decided that they alone 
should have sole say in who shall be appointed to the executive branch 
and who shall have the lifetime appointments to our Federal bench. I am 
one who believes this will very likely have very detrimental effects 
because when one party can ram through their choice without having to 
give any regard whatsoever to what the other party thinks, then what do 
we get? We get legislation like ObamaCare and we have extremes in the 
nominations that will eventually be confirmed.
  Any President comes under pressure from the extremes within his or 
her party to put the most extreme people in positions of power, and the 
Senate has played a vital role in moderating that extreme, that 
tendency, that pressure, because it has virtually always been the case 
that neither party has 60 votes. Very seldom has it been the case that 
a party has had over 60 votes. So it has almost always been necessary 
that there be some broad bipartisan consensus on the people who will 
populate powerful posts as regulators and lifetime appointments to the 
bench.
  That is no longer the case. There is no such check, and I fear that 
the consequences will be very detrimental: extremism in the regulatory 
agencies, volatility as we move from one administration to another and 
we have these swings, and probably the most disturbing of all is the 
real danger that the greatest source of pride Americans can have in 
their Federal Government, which has been an independent, nonpartisan 
judiciary--that very judiciary becomes a creature of the political and 
becomes captured by the political branches of government. That is the 
danger, and that is why it is important we consider how we got here and 
why we got here.
  It is particularly extraordinary when we consider the statements of 
some of the leaders on the other side of the aisle, Democratic leaders 
who for years were passionately opposed to doing exactly what they did 
last month. The majority leader himself just a short time ago said:

       The right to extend the debate is never more important than 
     when one party controls Congress and the White House. In 
     these cases, a filibuster serves as a check on power and 
     preserves our limited government.

  Senator Schumer, the senior Senator from New York, put it this way:

       The checks and balances which have been at the core of this 
     Republic will be evaporated by the nuclear option. The checks 
     and balances say that if you get 51 percent of the vote, you 
     don't get your way 100 percent of the time.

  That was Senator Schumer and Senator Reid. There are many other 
quotes on the record in which they vigorously opposed the notion of 
denying the minority any say in the confirmation process when it was 
discussed but never implemented some years ago. So why would they have 
such a 180-degree reversal? Why would their opinion and that of the 
vast majority of my Democratic colleagues have changed to the point 
where they would actually take this absolutely unprecedented step?
  Senator Reid gave an explanation on the day he inflicted these 
changes on this body. I will quote from Senator Reid's explanation. He 
said:

       There has been unbelievable, unprecedented obstruction. For 
     the first time in the history of our Republic, Republicans 
     have routinely used the filibuster to prevent President Obama 
     from appointing his executive team or confirming judges.

  That is what Senator Reid said. So it has been about Republicans 
obstructing the President from appointing his executive team and 
confirming judges.
  Well, let's consider the case of judges to start. Let's take a look 
at this chart. Since President Obama has been President, there are some 
very simple, very easily verifiable facts we can look at.
  The President has sent nominees for the Senate to consider since he 
became President. The Senate has confirmed 215 of those nominees, but 
the Senate has blocked 2 of his nominees. These are verifiable facts. 
They are not in dispute. These are the numbers. In total, the President 
has sent us the names of 217 candidates for judgeships, and 215 were 
confirmed and are sitting judges and 2 were blocked.
  There is another category of nominees; that is, the executive branch 
nominees--the various agencies and regulatory bodies that are subject 
to senatorial confirmation. The President has sent us a total of 1,494 
nonjudicial executive branch nominees. The Senate has confirmed 1,492. 
The Senate has blocked two.
  The math is not that complicated. The President has nominated and 
sent to the Senate for our consideration a total of 1,711 altogether, 
and the Senate has confirmed 1,707. The Senate has blocked four. If you 
do the math, that is a confirmation rate of 99.8 percent.
  So of all the nominees the President has sent to this body to be 
confirmed, we haven't actually confirmed every one; we have only 
confirmed 99.8 percent of them. Of the 1,711, we have blocked 4.
  I would suggest that the power of advice and consent--the 
Constitution says advice and consent; it doesn't just say advice. If it 
just said advice, then that would clearly imply that the President 
could ignore the advice if he chose. But it doesn't just say advice; it 
says advice and consent. The power to consent clearly and obviously 
implies that under some circumstances that consent would be withheld. 
If not, there is no meaning to this at all.
  So I would suggest it is patently absurd to suggest that a 99.8-
percent confirmation rate is a pattern of obstruction, as we have been 
accused of. So that can't be the real reason, obviously. Obviously, 
this kind of record of almost universally approving Presidential 
nominees can't possibly be the real reason we had this unprecedented 
power grab and rules change.
  So what was the real purpose? What was the real motivation behind 
this very dramatic development? I am here

[[Page S8769]]

to tell you that I think it is very clear what the real motivation was. 
The motivation was to pack the DC Circuit Court of Appeals so that a 
partisan group of judges would validate an agenda that this 
administration and many of our friends on the other side of the aisle 
want to impose.
  That is an outrageous thing to say in some ways. Some people might 
think that is quite an accusation. What would be my basis for saying 
something like that? It would be the fact that Senator Reid and Senator 
Schumer told us that was their reason. They said so. I will get to 
their quote, but let me explain why this has been done.
  The fact is that elections have consequences. The President of the 
United States was elected. The Republicans have been enormously 
deferential in confirming his nominees, among other things.
  But in 2012 the President wasn't the only person on the ballot. The 
entire House of Representatives was on the ballot, and the American 
people chose to reelect a Republican majority in the House of 
Representatives. Those elections have consequences as well, and one of 
the consequences of that election--the set of elections that produced a 
Republican majority in the House and left many Republicans in the 
Senate--is that the more liberal aspects of the President's agenda 
can't pass in Congress. They are not supported by a majority of the 
American people. They are not supported by majorities in Congress. 
Things like cap and trade, card check, the war on coal, and recess 
appointments don't have support. I don't think they have broad support 
in either body, certainly not enough in the House of Representatives to 
pass.
  So what is a President to do if he can't get his legislation passed 
but he nevertheless wants to pursue an agenda? Well, one way a 
President could choose to do this--especially one who is not interested 
in working with the minority party--and let's face it, ObamaCare is the 
clear example that this President is not interested in the input of 
Republicans. That was jammed through without a single Republican vote 
in either the House or the Senate. There was no input from Republicans. 
There was no consideration for what the minority party considered. 
There was not a broad consensus.
  It is not surprising that a very short time later there is a big 
majority of the American people who do not support this bill because it 
was never designed with enough input and enough buy-in to have that 
broad consensus. If a President is not interested in working with the 
minority party and he cannot get his legislation through because there 
are not enough members of his party in Congress, the alternative is to 
try to impose it through the regulatory process, through the agencies, 
through the regulators, through the executive branch, which has become 
enormous and enormously powerful.
  There is only one big hurdle for a President to try to go down this 
road and that hurdle is that eventually people who are the victims of 
an overreaching group of regulators and administrators and agency 
heads, they have recourse. If they think that a given regulator is 
acting unfairly or illegally or unconstitutionally, they can go to 
court and in fact people do that. Guess what court ends up hearing the 
appeals and making what is very typically the final decisions, as a 
practical matter, regarding Federal regulations. Why, it is the DC 
Circuit Court of Appeals. That is the way our Federal system works.
  In fact, the DC Circuit Court has generally been upholding the laws. 
I believe the evidence is very clear that it is a capable, competent, 
nonpartisan group of talented judges who make decisions as they see 
fit. They call balls and strikes, as referees ought to. Among their 
decisions, for instance--I am sure I do not agree with all of them but 
they did block what I thought was an illegal overreach by the EPA, 
inconsistent with the laws regulating EPA. They did not believe the 
President had the right to decide when Congress was in recess and make 
appointments that suited him when we were not able to deny consent. 
That was the DC Circuit Court's decision. This, and several others, 
were completely unacceptable to some of my Democratic friends. It was 
unacceptable this independent, nonpartisan court might reach decisions 
that were inconsistent with the liberal agenda.
  How do we know this was unacceptable? We have some quotes. The senior 
Senator from New York, Mr. Schumer, discussed this. He was speaking to 
a group of supporters. It is on the record. He complained that the DC 
Circuit overturned the EPA's ability to regulate existing coal plants. 
He complained the SEC cannot pass rules unless they do what is called a 
cost-benefit analysis. He complained they struck down the 
administration's illegal recess appointments to the NLRB. He told a 
group of supporters that Democrats ``will fill up the DC Circuit one 
way or another.''
  That was the quote. It was pretty straightforward, I will give him 
that. It is pretty candid. We do not like the decisions that are coming 
out of this court so we will pack the court with people who agree with 
our ideology.
  Senator Schumer was not the only one to make this case. Senator Reid 
had this to say of the DC Circuit:

       They are the ones who said the President can't have recess 
     appointments. They have done a lot of bad things. So we are 
     focusing very intently on the DC Circuit. We need at least 
     one more. There are three vacancies. We need at least one 
     more and that will switch the majority.

  This is Senator Reid on the DC Circuit: ``We need at least one 
more,'' obviously referring to a judge. ``We need at least one more and 
that will switch the majority.'' I think it is pretty clear what was 
going on here.
  Now fast-forward to a few weeks ago. There was just one obstacle to 
putting the people who would agree with Senator Schumer and Senator 
Reid on the DC Circuit Court and render the decisions they wanted. The 
obstacle was Republicans were not interested in going along with the 
scheme to pack the court for ideological purposes. They didn't think 
that was a very good idea. They thought it was probably better to have 
judges who were not there to try to advance a political agenda but 
believed their job is to apply the law as written and make sure it is 
consistent with the Constitution as opposed to pursuing a political 
agenda.
  Despite the fact that Republicans had to that point confirmed 99.8 
percent of all the President's nominees, that was going a little bit 
too far, to simply blatantly pack the DC Circuit Court, and we said no 
to the three nominees who were people they were intending to pack that 
court.
  When we did, Senator Reid, after publicly promising he was not going 
to change the rules this way just this past summer, nevertheless did 
exactly that. Despite the fact the Senate rules are very clear to 
change the rules requires a vote of 67 Senators, precisely so there 
would be a broad consensus behind the rules, Senator Reid changed the 
rules with a mere 51 votes. He broke the rules so he could change the 
rules so the Democratic majority can now steamroll through and 
rubberstamp all of the President's nominees, including those necessary 
to pack the court so they can pursue the agenda they want to pursue. 
This is not my speculation. These are the quotes from the man who 
helped to organize this effort.
  It is, frankly, very reminiscent in a lot of ways of ObamaCare: 
Steamroll through Congress, one party, no input from the other party, 
the minority party, and a complete disaster. By the way, the other big 
similarity is the broken promises. Senator Reid clearly, unambiguously, 
unequivocally, unconditionally made the promise that he was not going 
to change the rules and then he did.
  Then what have we been hearing about ObamaCare? One broken promise 
after another.
  What I am going to do for the remainder of the time that I consume 
this evening is remind all of us of some of the promises that were 
made. Then I am just going to read a small sample of the emails that 
have been coming into my office from Pennsylvanians who have learned 
firsthand, the hard way, the painful way, just how untrue these 
promises were.
  The first one is maybe the most famous of the promises. This is the 
President's repeated promise, echoed by many others, and I will quote: 
``If you like your health plan you can keep your health plan.'' I don't 
know how many times the President said it, but we have all seen it, we 
all know it. But what is particularly maddening is we also know 
something else. We know everybody who said this always knew this

[[Page S8770]]

was not true. It was not true because the design of the bill forbids 
people from keeping health insurance plans in many cases--not all cases 
but many cases--and the authors of the bill and the supporters of the 
bill and the people who voted for the bill knew full well that one of 
the purposes of the bill was to establish government-approved standards 
for all insurance plans.
  If your plan did not meet those standards, you were going to lose 
your plan. So this is what some folks have written to us about this 
promise, that if you like your health plan you can keep your health 
plan. This was just 2 days ago, a gentleman from Lancaster County from 
Pennsylvania wrote:

       As my Congressional representative, you need to know how 
     ObamaCare is harming my life and health care.
       I work for a small construction company. My cost for family 
     health care was already over $11,000 per year. We received 
     notification that our policy was being cancelled since it did 
     not comply with the requirements of the ``Affordable Care 
     Act.''
       Our company looked for the best rates they could find for 
     comparable coverage which did comply. They chose a new 
     insurance company. We just recently were given the costs for 
     next year. My cost to cover myself and my family will be over 
     $17,500 per year (a 59-percent increase). Even with that, the 
     deductibles and out of pocket maximums are higher. This is 
     not ``Affordable Care.'' This would eat up a major part of my 
     income.
       I attempted to log onto the healthcare.gov website several 
     times, but always get kicked out. I do not hold up much hope 
     that I will get any better rates, because I do not qualify 
     for a credit.
       We were already struggling to live on my take home pay. We 
     cannot afford to have it reduced by over $6,500. We may have 
     to drop health coverage for my wife or kids, and pay the 
     penalty.
       I suspect this law will result in many more people losing 
     their health care, at the expense of a few getting free or 
     reduced healthcare.

  Another from a gentleman from Cumberland County last week.

       My wife Barb and I have been trying for almost three weeks 
     to get signed up. . . . all income and health info and 
     private information is on the unsecured Web site and the 
     application is accepted . . . but we have not been able to 
     get on and pick the plan or get our price. . . . so nobody 
     has been paid. Thus our cancelled insurance ends on December 
     31st and we look to be out.
       A BIG mistake by the folks that voted for this . . . I've 
     had cancer a couple times, my wife has had cancer and we both 
     see our doctors when needed. This ACA will ruin many families 
     if we can't get on to an insurance plan.

  These folks are not only losing the insurance they have, but they 
have not been able to get an alternative plan.
  A woman from Lebanon County, Pennsylvania, last week sent me this 
email.

       We had our healthcare discontinued, and after an appeal 
     were able to get it reinstated, but only for this year. 
     Currently we have a healthcare savings plan, with a 
     deductible of $3,000 a year. . . . In the new plan, our 
     deductible would increase to $12,000 . . . and our premiums 
     would increase to $9,000 a year. How is a middle class 
     married family supposed to pay for that?
       This is absolutely ridiculous, and this is our situation. I 
     hope every government worker has to purchase their plan 
     through this plan.

  A gentleman from Delaware County sent me this email last week.

       I am 66 and I am on Medicare. My wife, Mary Ann is 63. Her 
     insurance company canceled her ``longstanding'' policy due to 
     the requirements of the ACA. Her ``new'' policy costs $350 
     more per month. We are on a strict budget. . . . We are the 
     hard working middle class. Who stands for us?

  A small business owner in Cumberland County, Pennsylvania, December 
3, 2013:

       I am a small business owner with 3 employees looking for 
     health insurance. My old policy is being canceled and was 
     offered a replacement policy which is 68% higher than the old 
     policy with higher deductibles. I went through the 
     healthcare.gov site and was quoted an individual policy for 
     my family which is 74 percent higher, with higher 
     deductibles.
       When do I see affordable health care for my family?
       I have been self-employed for 19 years and have paid for my 
     insurance all these years myself. With deductibles I am 
     looking at $26,000 out of pocket for health insurance this 
     year. Please Help!

  Another promise that we heard--these were people, real people who 
were demonstrating how untrue was the promise that you could keep the 
health insurance plan that you have. But there was another promise we 
heard frequently and that promise was, ``If you like your doctor, you 
will be able to keep your doctor, period.'' The President added that 
flourish at the end, ``period,'' just to emphasize. These are the 
President's words: ``If you like your doctor, you will be able to keep 
your doctor, period.''

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