[Congressional Record Volume 160, Number 7 (Monday, January 13, 2014)]
[Senate]
[Pages S284-S285]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           WILKINS NOMINATION

  Mr. LEE. Mr. President, I thank my colleagues from Rhode Island and 
Iowa for their cooperation in establishing the speaking order this 
evening. I would like to speak for a moment about the vote we just 
cast. We just confirmed Judge Wilkins to the U.S. Court of Appeals for 
the DC Circuit. I voted against this judge. In doing that, I joined my 
Republican colleagues for one simple reason. Several years ago, when 
President George W. Bush was in the White House, he nominated an 
eminently qualified lawyer named Peter Keisler who had bipartisan 
support.
  He was not a partisan hack; he was a true craftsman in the law. He 
was someone whom no one had any ideological opposition to, but he was 
blocked by the Senate Democrats at that time for the simple fact, based 
on the simple reason, that according to the Senate Democrats the DC 
Circuit's caseload was not sufficiently robust to justify the filling 
of this position.
  Since that time, not very many things have changed. Since that time, 
if anything, the DC Circuit's caseload per judge has remained about the 
same or some would argue has gone down a little, depending on which 
metric you use. One change is that we have now a Democratic President 
in the White House instead of a Republican President in the White 
House. Suddenly my friends across the aisle have forgotten about the 
caseload-based arguments they used a few years ago to keep Peter 
Keisler off the U.S. Court of Appeals for the DC Circuit.
  We have now confirmed, just in the last few weeks, three additional 
judges to the U.S. Court of Appeals for the DC Circuit. This has 
happened against substantial Republican opposition that has been based 
on the very analysis I have just outlined. This has been facilitated by 
virtue of the fact that my distinguished colleague, the senior Senator 
from Nevada, joined by his Democratic colleagues, chose a few weeks ago 
to exercise what has been referred to as the nuclear option. They broke 
the rules of the Senate in order to change the rules of the Senate, and 
they did that so they could put more people on the bench, so they could 
put more people into top-level positions in this administration while 
more or less squelching the view of the minority party within the 
Senate.
  This is unfortunate. The most unfortunate aspect of it is that it is 
part of a broader strategy that is not limited to the DC Circuit; in 
fact, it is not even limited to the Senate's confirmation process with 
respect to these judges or other judges. It extends much more broadly 
than that. It is part of the same effort that convinced the President 
of the United States, on January 4, 2012, to make four appointments, 
three to the National Labor Relations Board and one to the Consumer 
Financial Protection Bureau, pursuant to the President's recess 
appointment power.
  Citing Article II, Section 2, Clause 3 of the Constitution, the 
President claimed he had the power to appoint these individuals without 
going through the Senate advice-and-consent process because, as he 
asserted, the Senate was in recess. There was only one problem with 
this. The Senate was not in fact in recess. Under Article I, Section 5, 
Clause 2 of the Constitution, each Chamber of Congress, including the 
Senate, has the right to determine its own rules, its own procedures. 
According to the Senate's own rules and according to the Senate's own 
Journal, the Senate was in fact in session as of January 4, 2012, the 
moment these supposed recess appointments were made. This was a 
problem.

[[Page S285]]

  Fortunately, the U.S. Court of Appeals for the DC Circuit--prior, I 
would add, to the confirmation of the three recent judges we have 
confirmed just in the last few weeks--concluded that this was a lawless 
act; that it was unconstitutional; that the President did not have the 
right to deem the Senate in recess when, according to the Senate's own 
rules, the Senate was in session. The Senate was not in recess.
  That case today was reviewed by the Supreme Court of the United 
States. I had the privilege of sitting in the courtroom just across the 
street and watching those proceedings. I was pleased to see the checks 
and balances within our system were functioning--at least to the extent 
that we have our court system reviewing this act by the President of 
the United States. I think it is fortunate we have this kind of 
judicial system that can review it. Based on what I saw today and the 
quality of the arguments presented to the Court, I am hopeful the Court 
will reach the same conclusion. I am hopeful the Supreme Court will 
affirm the judgment entered by the DC Circuit.
  In a broader sense it is sad, it is disappointing that it even had to 
get that far, and it is disappointing that the President of the United 
States was willing to engage in such a lawless act; that the President 
of the United States was willing openly to flout the plain text, 
history, tradition of the U.S. Constitution.
  Ours is not a government of one. It was with good reason that the 
Founding Fathers split up the power, including the power to appoint 
people to high Federal office such that the President could nominate 
but the Senate got to confirm. By the President's approach, pursuant to 
which the President of the United States could himself deem the Senate 
in recess if he did not think the Senate was doing enough when it went 
into brief sessions, the President himself could substantially 
circumvent the advice-and-consent role the Founding Fathers and the 
Constitution wisely placed in the hands of the Senate.
  The reason I said it is unfortunate it had to get to that level, it 
is unfortunate, first of all, the President felt it was OK, it was 
acceptable do this. He, of course, took an oath, not once but twice, to 
uphold, protect, and defend the Constitution of the United States.
  It is unfortunate, secondarily, that there was not more of an outcry 
from this body. Sure, there were a lot Republicans who joined me in 
calling this action lawless, because it was. It was sad that none of 
our colleagues from the other side of the aisle--at least not 
publicly--were willing to acknowledge the lawlessness of this act. Some 
acknowledged to me in private that it was problematic. Some 
acknowledged to me that there were some implications behind this that 
threatened the Senate as an institution. But I think we need to be more 
open, more faithful, more forceful, and less partisan about the way we 
defend the Constitution of the United States.
  To me it would not matter--if this were a Republican President I 
would be arguing with equal strength on this issue. In the future when 
we have a Republican President, if any Republican President is lawless 
enough to try this, I will oppose it with everything within me. We 
ourselves take an oath to uphold the Constitution of the United States. 
I think that involves doing more than simply leaving it to the courts 
to iron out the details.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa.

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