[Congressional Record (Bound Edition), Volume 159 (2013), Part 12]
[Senate]
[Pages 16920-16922]
[From the U.S. Government Publishing Office, www.gpo.gov]




                              NOMINATIONS

  Ms. WARREN. Madam President, it hasn't been even a month since the 
end of the Republican shutdown of the government, and they are already 
back at

[[Page 16921]]

trying to paralyze the government again.
  Yesterday, the Republicans blocked an up-or-down vote on the 
nomination of Nina Pillard to the D.C. Circuit Court of Appeals. This 
filibuster comes just 1 week after Republicans filibustered the 
nomination of Patricia Millett to the D.C. Circuit, and less than 1 
year after Republicans filibustered Caitlin Halligan, who eventually 
just gave up and withdrew her nomination.
  Republicans now hold the dubious distinction of having filibustered 
all three women that President Obama nominated to the D.C. Circuit. 
Collectively, these women have diverse experiences in private practice, 
in government, and in public interest law. Between them, they have 
argued an amazing 45 cases before the Supreme Court and have 
participated in many more. All three have the support of a majority of 
Senators. So why have they been filibustered? The reason is simple. 
They are caught in a fight over the future of our courts--a fight over 
whether the courts will be a neutral forum that decides every dispute 
fairly or whether the courts will be stacked in favor of the wealthy 
and the powerful.
  Every day in Congress we deal with the influence of powerful groups 
and their armies of lobbyists. But in our democracy, when we write 
laws, sometimes we can push back on that power. In our democracy we 
have tools that can be used in the legislative process--tools such as 
open debate, public opinion, and political accountability, tools that 
can help the people win these fights. I saw it happen up close in the 
2008 financial crisis when we were able to get a strong consumer 
financial protection bureau despite the efforts of the large financial 
institutions to kill it.
  But the story doesn't end when Congress passes a law. Powerful 
interests don't just give up. They shift their fight to the courts 
because they know that if they can weaken or overturn a law in court, 
they turn defeat into victory. If they can break the courts by putting 
enough sympathetic judges in lifetime positions, a friendly judicial 
system will give them the chance to undermine any laws they don't like. 
That is already happening in the Supreme Court. Three well-respected 
legal scholars, including Judge Richard Posner of the Seventh Circuit, 
a distinguished judge and conservative Reagan appointee, recently 
examined almost 20,000 Supreme Court cases from the last 65 years. The 
researchers concluded that the five conservative justices currently 
sitting on the Supreme Court are in the top 10 most procorporate 
justices in more than half a century. Justices Alito and Roberts are 
number one and number two.
  Take a look at the win rate of the national Chamber of Commerce in 
cases before the Supreme Court. According to the Constitutional 
Accountability Center, the national Chamber moved from a 43-percent win 
rate during the last 5 terms of the Burger court, to a 56-percent win 
rate under the Rehnquist court, to a 70-percent rate under the Roberts 
court. Follow this procorporate trend to its logical conclusion, and 
pretty soon you will have a Supreme Court that is a wholly owned 
subsidiary of big business.
  The powerful interests that work to rig the Supreme Court also want 
to rig the lower courts. The D.C. Circuit is a particular target 
because that court has the power to overturn agency regulations. If a 
business doesn't like it when the agencies implement the will of 
Congress, they try to undermine those agencies through the D.C. 
Circuit.
  In the next 5 years, the D.C. Circuit will decide some of the most 
important cases of our time--including cases which will decide whether 
Wall Street reform will have real bite or whether it will just be 
toothless. Swaps dealers, the securities industry, the Business 
Roundtable, and the Chamber of Commerce are all lining up to challenge 
the new rules that agencies have written to try to put some teeth into 
Wall Street reform and other laws. These big-industry players want 
business-friendly judges to help bail them out.
  So let's be clear. Nine of the 14 judges on the D.C. Circuit who 
currently hear cases were appointed by Republican Presidents. The 
President with the most appointees on that court right now is Ronald 
Reagan.
  This lopsided court has been busy striking down environmental 
regulations that stop companies from spewing mercury into the air we 
breathe, striking down investor protections that hold corporate boards 
accountable, striking down a requirement for employers to provide 
access to birth control under ObamaCare. Each of these regulations 
exists because Congress has passed laws telling the agencies to write 
them.
  It is true that sometimes an agency may get it wrong, but these days 
the D.C. Circuit seems to be finding more and more ways to help bail 
out the businesses that never wanted to be regulated in the first 
place.
  Republicans have noticed what is going on with this lopsided court. 
They would like to keep things the way they are, and they have not been 
subtle about it. Many Republicans have talked openly of their 
opposition to any new judges to fill the three vacancies on this court 
precisely because the new nominees will give the court more balance and 
fairness. Republicans may prefer a rigged court that gives their 
corporate friends and their armies of lobbyists and lawyers a second 
chance to undercut the will of Congress, but that is not the job of 
judges. Judges aren't supposed to make law. Judges aren't supposed to 
tilt politically one way or the other.
  Republicans may not like Wall Street reform. They may not like 
ObamaCare. But Congress passed those laws. President Obama signed those 
laws. President Obama ran for reelection on those laws, while his 
opponent pledged to repeal them--and his opponent lost by nearly 5 
million votes. It is not up to judges to overturn those laws or their 
associated regulations just because they don't fit the judges' policy 
preferences.
  There are three vacancies on the D.C. Circuit, and the President has 
nominated three impressive people to fill those vacancies--including 
Patricia Millett and Nina Pillard. These nominees are not ideological. 
They have extraordinary legal resumes and have received bipartisan 
support from top litigators around the country. They are among the top 
legal minds of this generation.
  This is how the President plans to push back against efforts to tilt 
our judicial system: by nominating judges who will be judges--judges 
who will be fair, judges who will be evenhanded, judges who will have 
the diversity of professional experience to understand and consider all 
sides of an issue.
  I understand that Republicans may prefer to keep the D.C. Circuit 
exactly as it is. But article II, section 2 of the Constitution says 
the President of the United States nominates judges, with the advice 
and consent of the Senate. There is no clause that says, except when 
that President is a Democrat. Democrats allowed President George W. 
Bush to put four very conservative judges on the D.C. Circuit. All four 
are still serving, and one is Chief Justice of the U.S. Supreme Court.
  There are three vacancies in the D.C. Circuit Court of Appeals. The 
President of the United States has nominated judges to fill those 
vacancies. That is his job, and it is the job of the Senate to confirm 
highly qualified, independent judges. That is how our system works. 
That is what the Constitution demands.
  Republicans these days do not seem to like that. They keep looking 
for ways to keep this President from doing his job. So far they have 
shut down the government, they have filibustered people he has 
nominated to fill his administration, and they are now filibustering 
judges to block him from filling any of the vacancies with highly 
qualified people. We need to call out these filibusters for what they 
are--naked attempts to nullify the results of the last Presidential 
election, to force us to govern as though President Obama had not won 
the 2012 election.
  President Obama did win the 2012 election--by 5 million votes. He has 
done what the Constitution requires him to do--nominated highly 
qualified

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people to fill open vacancies on the Federal bench. If Republicans 
continue to filibuster these highly qualified nominees for no reason 
other than to nullify the President's constitutional authority, then 
Senators not only have the right to change the filibuster rules, 
Senators have a duty to change the filibuster rules. We cannot turn our 
back on the Constitution. We cannot abdicate our oath of office. We 
have a responsibility to protect and defend our democracy, and that 
includes protecting the neutrality of our courts and preserving the 
constitutional power of the President to nominate highly qualified 
people to court vacancies.

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