[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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