Doing Whatever It Takes - Majority Changes the Senate Rules

Prepared Floor Statement of Senator Chuck Grassley

Ranking Member, Senate Committee on the Judiciary

On the Majority’s Change to the Senate Rules

Thursday, November 21, 2013

Mr. President,

I’d like to spend a few minutes discussing the Majority Leader’s employment of the so-called “Nuclear Option.” 

Unfortunately, this isn’t a new threat.  Over the last several years, every time the Minority has chosen to exercise its rights under the Senate Rules, the Majority has threatened to change the Senate rules.  In fact, this is the third time in just the last year or so that the Majority Leader has said if he didn’t get his way on nominations, he’d change the rules. 

Ironically, that’s about as many judicial nominees as our side has stopped with the filibuster. 

Prior to the recent attempt by the President to simultaneously add three judges to the D.C. Circuit that aren’t needed, Republicans had stopped a grand total of two of President Obama’s judicial nominees. 

Not 10, as the Democrats had done by President Bush’s 5th year in office. 

Not 34, as one of my colleagues tried to suggest earlier this week. 


And if you include the nominees for the D.C. Circuit, we’ve stopped a grand total of 5. 

Again, not 10 as the Democrats had done by 2005.

Not 34, as one of my colleagues tried to argue earlier this week.  5. 

During that same time we’ve confirmed 209 lower court Article III judges.  That’s a record of 209 to 5.


So this threat isn’t based on a “crisis.”  There is no crisis. 

I’d note that today’s Wall Street Journal editorial, entitled “D.C. Circuit Breakers, ‘The White House wants to pack a court whose judges are underworked,’” lays out the caseload pretty clearly.  And I’d ask that this editorial be made part of the record. 

So, this is about a naked power grab, and nothing more.  This is about the other side not getting everything they want, when they want it. 

Now, the other side claims that they have been pushed to this point because our side objected to the President’s plan to fill the D.C. Circuit with judges it doesn’t need. 

But the other side tends to forget history, so let’s review how we got here. 

After the President simultaneously nominated 3 nominees for the D.C. Circuit that aren’t needed – a blatant political power grab in its own right –  what did Republicans do?  Well, we did something quite simple.  We said we’d hold Democrats to the same standard they established in 2006 when they blocked Peter Keisler.

So let’s be clear about why the Democrats are “outraged.” 

Democrats are “outraged” because Republicans actually had the temerity to hold them to a standard they established.  And because we did, because we insisted that we all play by the same rules, they’ve come right back and said, ‘then we’ll change the rules.’  

The other side has said, in effect, ‘we don’t want to be held to the standard we established in 2006.’  And not only that, but if you don’t give us what we want, we are willing to forever change the Senate.

Now, we hear a lot of ultimatums around here.  But this ultimatum is not run-of-the-mill.  It’s different. 

It’s different because this threat is designed to hold the United States Senate hostage. 

It’s different because it’s designed to hold hostage all of the Senate’s history and traditions. 

It’s different because, to be effective, it relies on the good will of Senators who don’t want to see the Senate as we know it destroyed. 

Now, I’d note that today’s Majority didn’t always feel the way they do today. 

Not too many years ago, my colleagues on the other side described their fight to preserve the filibuster with great pride.

For instance, in 2006 one of my colleagues on the other side said it this way:

“The nuclear option was the most important issue I have worked on in my public life. Its rejection was my proudest moment as minority leader. I emerged from the episode with a renewed appreciation for the majesty of Senate rules. As majority leader, I intend to run the Senate with respect for the rules and for the minority rights the rules protect.”

In 2005, another of my Democrat colleagues had this to say:

“Today, Republicans are threatening to take away one of the few remaining checks on the power of the executive branch by their use of what has become known as the nuclear option. This assault on our tradition of checks and balances and on the protection of minority rights in the Senate and in our democracy should be abandoned.

Eliminating the filibuster by the nuclear option would destroy the Constitution's design of the Senate as an effective check on the executive.”

And then there was this, from the late Senator Byrd in 2005:

“And I detest this mention of a nuclear option, the constitutional option.  There is nothing constitutional about it, nothing.”

But of course, that was back when today’s Majority was in the Minority, and there was a Republican in the White House. 

Today, the shoe is on the other foot.  Today, the other side is willing to forever change the Senate because Republicans have the audacity to hold them to their own standard.

But why?  Why would the other side be willing to do this? 

There clearly isn’t a crisis on the D.C. Circuit.  The judges themselves say if we confirmed any more judges, there wouldn’t be enough work to go around. 

And it’s not as if all of these nominees are mainstream, consensus picks, despite what the other side would have you believe.  Take Professor Pillard, for instance.

She has written this about motherhood:

“reproductive rights, including rights to contraception and abortion, play a central role in freeing women from historically routine conscription into maternity.”

Is that mainstream?

She has also argued this about motherhood:

“Antiabortion laws and other restraints on reproductive freedom not only enforce women’s incubation of unwanted pregnancies, but also prescribe a ‘vision of the woman’s role’ as mother and caretaker of children in a way that is at odds with equal protection.”

Is that mainstream?

And what about her views on religious freedom?  She argued that the Supreme Court case of Hosanna-Tabor Evangelical Lutheran Church, which challenged the so-called “ministerial exception” to employment discrimination, represented a “substantial threat to the American rule of law.”

The Supreme Court rejected her view 9-0.  9-0. And the Court held that “it is impermissible for the government to contradict a church’s determination of who can act as its ministers.”

Do my colleagues really believe mainstream America thinks churches shouldn’t be allowed to choose their own ministers?

I could go on, but you get the picture. 

The point is this: any vote to change the Senate rules is a vote to remove one of the last meaningful checks on the President, and that vote would put these views on this important court.

So I ask again, why would the other side do this?

It is nothing short of a complete and total power grab.

It is the type of thing we’ve seen again and again out of this administration and their Senate allies.

And you can sum it up this way: Do whatever it takes.

-You can’t get Obamacare passed with Republican support?

- Do whatever it takes: Pass it at 7 a.m. on Christmas Eve with just Democrat votes. 

-You can’t get all of your side to support Obamacare? 

- Do whatever it takes: Resort to the “cornhusker kickback.” 

-You lose your 60th Senate vote on Obamacare due to a special election? 

- Do whatever it takes: Ram it through anyway using reconciliation. 

-The American people don’t want to be taxed for not buying healthcare?

- Do whatever it takes: Tell the American people it isn’t a tax, and then argue in court that it IS.

-The American people want to keep their healthcare?

- Do whatever it takes: Promise them “if you like your healthcare you can keep it,” then issue regulations making it impossible. 

-Your big labor allies want out from under Obamacare?

- Do whatever it takes: Consider issuing them a waiver from the reinsurance tax.

-You can’t find consensus nominees for the National Labor Relations Board?

- Do whatever it takes: Recess-appoint them when the Senate isn’t even in recess.

-You can’t convince Congress to adopt your gun control agenda?

    - Do whatever it takes: Issue some Executive Orders.

-You can’t convince moderate Democrats to support Cap and Trade fee increases?

- Do whatever it takes: Do the same thing through EPA regulation.

-Frustrated that conservative groups’ political speech is protected under the First Amendment? 

- Do whatever it takes: Use the IRS to harass and intimidate those same conservative groups.

-Frustrated when the court stands up for religious freedom and issues a check on the Obamacare contraception mandate?

- Do whatever it takes: Stack the D.C. Circuit in your favor.

-Frustrated when the court curbs your power on recess-appointments?

- Do whatever it takes: Stack the D.C. Circuit in your favor.

-Worried EPA’s regulations on Cap and Trade fee increases might get challenged in court?

- Do whatever it takes: Stack the D.C. Circuit in your favor.

-Frustrated because Senate Republicans have the nerve to hold you to the same standard you established during the last Administration?

    - Do. Whatever. It. Takes.

-Change the rules of the United States Senate.

Mr. President, that’s what we have witnessed today.  This is an absolute power grab. 

The Majority in the Senate and their allies in the Administration are willing to do whatever it takes to achieve their partisan agenda. 

They know there will be additional challenges to Obamacare.

They know if they can stack the deck on the D.C. Circuit, they can remove one of the last remaining checks on presidential power.

But make no mistake.  My friends on the other side will have to answer this question: Why did you choose this moment to break the rules to change the rules?

Why now?

Why, when we are witnessing the collapse of this massive effort to centrally plan 1/6th of this wonderful Nation’s economy?

Why, when millions of Americans are losing their healthcare?

Why did you choose this moment to hand the keys to the kingdom over to the President? 

Because the fact of the matter is this: any vote to break the rules to change the rules is a vote to ensure Obamacare remains intact.

So, Mr. President, I’ll conclude by saying this.

Changing the rules of the Senate in this way was a mistake. 

But if the last several years have taught us anything, it’s that the Majority won’t stop making these demands.

And we can’t give in to these constant threats. 

Sooner or later, you have to stand up and say ‘enough is enough.’

But, if there is one thing that will always be true, it’s this:  Majorities are fickle.  Majorities are fleeting. 

Here today.  Gone tomorrow. 

That’s a lesson that sadly, most of my colleagues on the other side of the aisle haven’t learned, for the simple reason that they’ve never served a single day in the Minority.

So the Majority has chosen to take us down this path, the silver lining is that there will come a day when the roles are reversed.

When that happens, our side will likely nominate and confirm lower court and Supreme Court nominees with 51 votes, regardless of whether the Democrats actually buy into this fanciful notion that they can demolish the filibuster on lower court nominees and still preserve it for Supreme Court nominees.

I yield the floor.