Pillard Nomination

Floor Speech

Mr. GRASSLEY. Madam President, I come to the floor to speak in opposition to the motion to invoke cloture on the nomination for the DC Circuit nominee Cornelia Pillard. Although her record makes clear that her views are well outside the mainstream on a host of issues, I am not going to focus any attention on those concerns today. I am going to focus instead on the standard the Democrats established in 2006. Based on that standard, the court's caseload makes it clear that the workload simply doesn't justify additional judges, particularly when those additional judges cost approximately $1 million per year per judge.

I have walked through these statistics several times now, and I am not going to go in depth again. The bottom line is the data overwhelmingly supports the conclusion that the DC Circuit is underworked. Everyone knows this is true. That circuit does not need any more judges. Take, for instance, the appeals filed and appeals terminated. In both categories the DC Circuit ranks last, and in both categories the DC Circuit is less than half the national average. To provide some perspective on this point, compare the DC Circuit to the Eleventh. After another judge took senior status about a week ago, both the DC Circuit and the Eleventh Circuit have eight active judges. If we don't confirm any more judges to either court, the numbers remain the same as last year. The Eleventh Circuit will have 875 appeals per active judge compared to the 149 appeals filed per active judge in DC, which also has 8 active judges. Again, that is 875 cases for the Eleventh compared to 149 for DC.

Some might argue that we shouldn't look only at active judges because those averages will change if and when we confirm more judges to the Eleventh Circuit. Suppose we fill each judgeship on the Eleventh Circuit and each judgeship on the DC Circuit, as the Democrats want to do. If we fill them all, there would be 583 appeals filed per judge for the Eleventh Circuit and only 108 for the DC Circuit. The Eleventh Circuit, then, would have over five times the caseload. This is why everyone who has looked at this objectively understands that the caseload for the DC Circuit is stunningly low. That is why current judges on the court have written to me and said things such as this--and I will quote from one of the letters: ``If any more judges were added now, there wouldn't be enough work to go around.''

Some of my friends on the other side recognize that the DC Circuit's caseload is low, and they claim then that the caseload numbers don't take into account the ``complexity'' of the court's docket. They argue that the DC Circuit hears more administrative appeals than other circuits do, and they claim these administrative appeals are more complex. This argument is nonsense, and I will tell my colleagues why it is nonsense.

I have heard my colleagues argue repeatedly that the DC Circuit's docket is complex because 43 percent of the docket is made up of administrative appeals. But, of course, that is a high percentage of a very small number. When we look at the actual number of those so-called complex cases per judge, the Second Circuit has almost twice as many as the DC Circuit. In 2012 there were 512 administrative appeals filed in DC. In the Second Circuit, there were 1,493 compared to that 512.

We can look at this differently as well. In DC there were only 64 administrative appeals per active judge. The Second Circuit has nearly twice as many per judge with 115. Again, that is 64 administrative appeals per active judge in the DC Circuit as opposed to the Second Circuit, which has almost twice as many with 115.

So this entire argument about complexity is what I already called it--nonsense--and the other side knows it, and if they don't know it, they ought to know it.

Let me raise another question regarding caseload. If these cases were really that hard, if these cases were really so complex, then why in the world would the DC Circuit take the entire summer off? I am not talking about just a couple of weeks in August; they don't hear any cases for the entire summer. The DC Circuit has so few cases on their docket that they don't hear any cases from the middle of May until the second week of September. This past term, the last case they heard before taking the summer off was May 16. The court didn't hear another case until September 9--4 months later.

The bottom line is everyone knows this court doesn't have enough cases as it is, let alone if we were to add more judges. That is why, when we ask the current judges for their candid assessment, they write: ``If any more judges were confirmed now, there wouldn't be enough work to go around.''

While I am discussing the caseload issue, I will remind my colleagues of a little bit of history that is very pertinent to this debate. In 2006 the Democrats on the Judiciary Committee blocked Peter Keisler's nomination to the DC Circuit. They blocked Mr. Keisler's nomination based upon--my colleagues can guess it--the court's caseload.

Since that time, by the standard set by the other side, the court's caseload has declined sharply.

We did not set this standard. The Democrats set that standard. I recognize that the other side wants to rewrite history. They try to compare John Roberts' second nomination to the circuit, which passed fairly easily, with the current nomination. What they conveniently forget in a misleading way is that they blocked Keisler's nomination after Roberts' nomination.

I recognize the other side hopes we on this side will forget they established these rules and these precedents. I recognize the other side finds those rules very inconvenient today. But these are not reasons to ignore rules and precedents they established. There is simply no legitimate reason the other side should not embrace those very same rules, those very same standards they established in the year 2006.

So under that standard established by the Democrats in 2006, then, very simply, these nominations are not needed. According to the current judges themselves, these judges are not needed. According to the chief judge of the DC Circuit, who happens to be a Clinton appointee, the senior judges are contributing the equivalent of an additional 3.25 judges. So, as a result, the court already has the equivalent of 11.25 judges, and that is beyond even the authorized number.

It seems pretty clear the other side has run out of legitimate arguments in support of these nominations. Perhaps that is why, then, they are resorting to such cheap tactics.

Over the last couple days, I have heard my colleagues on the other side

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come to the floor and actually argue that Republicans are opposing the nominee because of her gender. That argument is offensive. But, you know, it tends to be very predictable. We have seen this before. When the other side runs out of legitimate arguments, their last line of defense is to accuse Republicans of opposing nominees based upon gender or race. It is an old and it is a well-worn card, and they play it every time.
The fact is--and this is why it is offensive to me--I voted for 75 women nominated to the bench by President Obama, as well as a host of other nominees of diverse backgrounds. Those are the facts. But the other side is not concerned with facts. They are more interested in coarse rhetoric as well as demagoguery, and it is very unfortunate. Those types of personal attacks on Members of the Senate are beneath this institution.

Given there is no legitimate reason to fill these seats, why is the other side pushing these nominations so aggressively? And this is really the bottom line. But you can also ask, why waste $3 million a year of taxpayers' money for reasons that are not legitimate, particularly in violation of the constitutional checks and balances?

As to these other reasons, we do not have to guess. We know the reason. We have all heard the President pledge repeatedly: If Congress will not act, I will. What he means, of course, is that he will rule by executive fiat. He will not go to Congress. He will not negotiate. He will go around this constitutionally elected body whose constitutional powers are to make law. That is not his power. He does not need legislators, then, to enact legislation. He will just issue executive orders or issue new agency rules. Why bother with us pesky Senators and Members of the House when you can make laws with a stroke of the pen? In effect, the President is saying: If the Senate will not confirm who I want when I want them, then I will recess-appoint them when the Senate is even in session. If Congress will not pass cap-and-trade fee increases, then I will go around them. And I will do the same thing through administrative action at the Environmental Protection Agency. If Congress will not pass gun control legislation, then I will issue executive orders.

That is what the President means when he says: If Congress will not act, I will. But remember, we have a system of checks and balances. Under our system, when the President issues orders by executive fiat, it is the courts that provide a check on his power. It is the courts that decide whether the President is acting unconstitutionally.

So the only way the President's plan works is if he stacks the deck in his favor. The only way the President can successfully bypass Congress is if he stacks the court with ideological allies who will rubberstamp those executive orders.

There is no big secret here. The other side has not been shy about this strategy. Here is how the Washington Post described this strategy:

Giving liberals a greater say on the D.C. Circuit is important for Obama as he looks for ways to circumvent the Republican-led House and a polarized Senate on a number of policy fronts through executive order and other administrative procedures.

Here is how another high-profile administration ally put it:

There are few things more vital on the president's second-term agenda. With legislative priorities gridlocked in Congress, the president's best hope for advancing his agenda is through executive action, and that runs through the D.C. Circuit.

So the President is willing to waste $3 million of taxpayers' money a year--and every year--in order to bypass Congress and make sure his executive orders do not lose in court. Every Member of this body should find that very troubling.

Finally, I want to mention a couple points on the so-called Gang of 14 agreement, which argument comes up quite frequently here on the floor, even though it is going back to the 109th Congress.

First, by the very terms of that agreement, it applied only to those 14 Senators for that specific Congress, the 109th.

Second, even though that agreement, by its own terms, expired at the end of the 109th Congress, just last week one of the Members who was actually in the Senate back in 2005 determined that these nominations, in his judgment, constituted ``extraordinary circumstances,'' which those two words implied that a filibuster would be justified.

And third, in 2006, after the so-called Gang of 14 agreement, Senate Democrats created a standard that we call the Keisler standard. They blocked Peter Keisler based on caseload, after the so-called Gang of 14 agreement. Peter Keisler waited in committee for over 900 days for a vote, a vote that never came.

These are the rules established by the other side. And now, when they are on the receiving end of those same rules, they want those rules changed. We do not intend to play by two sets of rules around here.

And that brings me to the constant threat from the majority about changing the rules on the filibuster. I have been in the minority for a number of years. I have also had the privilege of serving in the majority for a number of years. Many of those on the other side who are clamoring for rules changes--and almost falling over themselves to do it--have never served a single day in the minority. All I can say is this: Be careful what you wish for.

I have come to the conclusion that if the rules are changed, at least we Republicans will get to use those new rules when we are back in the majority. Republicans had the chance 7 or 8 years ago to change the rules, and we decided, out of respect for the integrity of this institution, not to change them. I am glad we did not. And I would imagine we would not be the first to change them in the future.

Remember, it was the Democrats who first used the filibuster to defeat circuit judges. It was the Democrats who first used the caseload argument to defeat circuit judges such as Peter Keisler. So if the Democrats are bent on changing the rules, then I say go ahead. There are a lot more Scalias and Thomases out there whom we would love to put on the bench. The nominees we would nominate and confirm with 51 votes will interpret the Constitution as it was written. They are not the type who would invent constitutional law right out of thin air.

I urge my colleagues to oppose cloture on the Pillard nomination.

I yield the floor.

I suggest the absence of a quorum.

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