Chuck Grassley

United States Senator from Iowa

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Grassley Floor Statement on the Nomination of Pamela Harris, Stacking the Fourth Circuit

Jul 28, 2014

Prepared Floor Statement of Senator Chuck Grassley of Iowa
Ranking Member, Senate Judiciary Committee
Statement Opposing the Nomination of Pamela Harris
to be Circuit Judge for the
United States Court of Appeals for the Fourth Circuit
Monday, July 28, 2014

Last week, I explained why I oppose the nomination of Pamela Harris to the Fourth Circuit.  
I’d like to raise several other aspects of her record today that I find troubling.  But before I address the specifics of this nominee, I need to place this nomination in context.
 
Last November, when the distinguished Majority Leader decided to toss aside an institution almost as old as the Senate itself, he claimed that breaking the rules was necessary because of an imminent crisis on the D.C. Circuit.  

Not a judicial emergency – the numbers made it plain that there was no judicial emergency – but a crisis that required radical action.  And that was after we had already confirmed the President’s first nominee to that court by a unanimous vote of 97 to zero.  

As I said in November: There was no crisis.  

According to the Administrative Office of the U.S. Courts, as of September 2013, the D.C. Circuit had 149 pending appeals for each active judge – by far the lightest caseload of any of the nation’s 13 circuit courts of appeals.  And the number of cases filed in that Circuit decreased by almost 5 percent in 2013.
 
So the only crisis the distinguished Majority Leader was responding to was one he and the Obama White House had manufactured.  Instead, in an exercise of raw political power, he decided to stack the D.C. Circuit by ramming through three of the President’s nominees simultaneously.  

It turns out that the crisis was just an excuse for a political power grab, plain and simple.  And everybody knew it, despite the denials from the other side.  All the signs were there for anybody who cared to see them.  

In May of last year, the distinguished Majority Leader said that the D.C. Circuit was “wreaking havoc with the country” and that he was going to “do something about it.”   

I’m not going to recount how my Democrat colleagues repeatedly blocked President Bush’s nominees to that court when they were in the minority.  Those were and remain nominees of the highest quality who deserved a vote but never got one.

Suffice it to say that during the Bush administration, when the parliamentary shoe was on the other foot, the distinguished Democrat leader claimed that the filibuster was a sacred institution.  
Times sure have changed.  

So now, after the other side has succeeded in stacking the D.C. Circuit, Democrat appointees outnumber Republican appointees by a 7 to 4 majority among the active judges.  The distinguished Majority Leader wasn’t going to leave anything to fortune, and he rammed those three nominees through.  

I’m recounting how the Majority took the Senate nuclear because it all came to another head last week.  You see, on Tuesday, a three-judge panel of the D.C. Circuit decided Halbig versus Burwell, the most significant Obamacare ruing since the Supreme Court upheld the constitutionality of the law in 2012.  

Halbig is a straightforward case of statutory interpretation under the Administrative Procedure Act, and the D.C. Circuit panel got it right.  As the panel held, the text of the Affordable Care Act states, on its face, that tax credits are available only to individuals who purchased their insurance plans through an exchange established by a state.  So the IRS can’t make the tax credits available, as the law clearly says, to those who bought plans through the federal exchange.  And you don’t have to take my word for it.  

Putting aside the ample evidence mustered by the D.C. Circuit’s opinion, as early as 2009, the former Democrat chair of our Finance Committee suggested that tax credits were aimed to cover only the state exchanges.
 
Additionally, economist Jonathan Gruber, one of the key architects of Obamacare, has been very clear on this question.  According to the New York Times, Mr. Gruber’s role in designing Obamacare was so crucial that “the White House lent him to Capitol Hill to help Congressional staff members draft the specifics of the legislation.”  

So what did the Administration’s own expert economist have to say about the availability of tax credits under Obamacare?  Here’s his quote from 2012 explaining how the credits were intended as a political pressure tactic on the States:  

“I think what’s important to remember politically about this, is if you’re a state and you don’t set up an Exchange, that means your citizens don’t get their tax credits.  But your citizens still pay the taxes that support this bill.  So you’re essentially saying to your citizens, you’re going to pay all the taxes to help all the other states in the country. I hope that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these Exchanges, and that they’ll do it.  But you know, once again, the politics can get ugly around this.”

He’s right.  

The politics have gotten very ugly around this.  

After the panel ruled against the HHS Secretary in Halbig last week, it only took the administration about an hour to announce that it would seek en banc review by the full D.C. Circuit.  And that’s where the majority’s power grab pays off.  

You see, breaking the Senate’s long-standing rules and stacking the D.C. Circuit was a premeditated political calculation from the beginning.  

And so, last week when asked whether his decision to stack the court was vindicated by the Halbig decision, the distinguished Majority Leader told the press:

“I think if you look at simple math, it does.  Simple math, you bet.”  

Simple math was the other side’s calculation.  

The simple math is stacking the D.C. Circuit with left-wing judges who will do in a court what the President and the other side have been unable to do through the legislative process.  It’s what they’ve been unable to do through the proper channels of government designated by the Constitution to resolve these issues: through the Congress.  

But the President has been complaining for years that he can’t accomplish his legislative agenda that way, so he went looking for alternatives to the constitutional process.  Faithfully executing the law is not something this president concerns himself with.  By now, everybody has heard the President’s boast about his pen and his phone.  

As of July 18th of this year, the President, wielding that pen and dialing that phone, has unconstitutionally amended Obamacare by executive or administrative fiat a grand total of 24 times.  And that’s a conservative estimate of everything he’s done.  

The president’s unilateral executive actions were not minor.  They unconstitutionally altered basic aspects of the law’s design and operation.  Things as fundamental as:  Delaying the individual mandate; ordering the IRS to make subsidies available through the federal exchanges in direct contravention of law; extending non-compliant plans; delaying the employer mandate not once but twice; and exempting unions from reinsurance fees, which will create costs that will be passed on to consumers who aren’t fortunate enough to be employed by the President’s political allies.  

All in violation of the law.

By his own admission, the President has used these aggressive and lawless tactics because he can’t prevail in the legislative arena.  But time’s shown that executive action has been insufficient to realize a failed legislative agenda.  So the President turned to the courts to do what he couldn’t otherwise do legislatively.  What he couldn’t do within constitutional constraints.

It’s all just simple math.

Well, that’s not how the Constitution works.  

The President isn’t entitled to a rubber stamp from Congress on unpopular legislation.  And he’s not entitled to stack the courts with radically liberal judges when his political initiatives fail legislatively.  So I want the other side to remember this when they inevitably find themselves in the minority once again.  I want them to remember the new realities of so-called simple math that they’ve resorted to in order to accomplish their legislative projects through judicial proxies instead of through the democratic process.  

The D.C. Circuit wasn’t the only appeals court to rule on the Obamacare subsidies issue last week, and that brings me back to Professor Harris’s nomination.  The Fourth Circuit also ruled, but in contrast to the D.C. Circuit, it upheld the Administration’s subsidies regime in the King case.  And that’s where this nominee comes in.  

As I explained to my colleagues last week, the timing of the vote on this nomination is not a coincidence.  Professor Harris is being fast-tracked to the Fourth Circuit, just in time for another en banc appeal, should one materialize.   The professor, one of the President’s most stridently liberal nominees to date, is jumping ahead of other circuit nominees on the Executive Calendar.  

Why?  

For one simple reason.

The administration is betting on more simple math to defend Obamacare in the Fourth Circuit.  Just like they’re betting on simple math to save them in the D.C. Circuit.  

My colleagues need to face the facts.

Professor Harris is a rock-solid vote for saving Obamacare’s unlawful subsidies regime, which many commentators have described as the economic lynchpin of the entire law.  All we need to do is look at this nominee’s record, which shows, time and again, how this nominee confuses politics and law.  

For years prior to her confirmation hearing, she advocated a legal philosophy in which left-wing politics actively guides and shapes judicial decisionmaking.  She’s explained in detail that she believes the Constitution is made and remade over and over again by political movements at so-called constitutionally critical junctures.  

Do we even need to ask whether Professor Harris thinks that passage of Obamacare was one such critical juncture and that the law is worth preserving at all costs?  

The question answers itself.  Just look at her record.  Before my colleagues vote, I want them to have a clear picture of what this nominee stands for.  

So I’m going to mention a few truly remarkable positions she’s taken in addition to the many I discussed last week.  

Professor Harris is on the record that extra-legal considerations should influence how a judge rules.  But she’s also expressed her belief that the personal characteristics of the judge should matter, too.  I think it’s fair to say that she is acutely concerned with the personal characteristics of the judge.  

In 2010, she even told the Los Angeles Times that the President should consider a judicial nominee’s religious beliefs when filling Supreme Court vacancies.  She said: “It’s hard for me to see religion as especially different than all other things that presidents take into account.”  

I don’t even know where to start with that, and perhaps the less said about it the better.  But I’d be interested to know which religions the nominee thinks are suitable or unsuitable for representation on the federal bench.  

I’ll leave you with another example of just how out of the mainstream this nominee is.  Professor Harris is an outspoken advocate for abortion rights.  Over the years, she has made a number of controversial statements about abortion and the Supreme Court’s abortion precedents.  

Shockingly, on one occasion last year, she described partial-birth abortion as a merely “late-ish” kind of abortion.  The nominee also suggested that States “gin up medical controversies” intentionally and in bad faith in order to justify restrictions on late-term abortion.  She denigrated restrictions on partial-birth abortion because, in her view, “you could find one guy to say ‘I don’t know it’s safe’ to create medical uncertainty that will allow state regulation.”  

Those are definitely not the views of a mainstream nominee.  

So, my colleagues need to understand this nominee’s views fully before they cast their votes.  

This is a nominee who describes herself as a “profoundly liberal person” and who thinks the
Constitution is a “profoundly progressive document.”  This is a nominee who actually thinks the Constitution embodies her personal left-wing philosophy and has said it’s “pretty close to where I am.”  This is a nominee who’s suggested that a judicial nominee’s religious faith is a valid consideration for service on the federal bench.  This is a nominee who thinks partial-birth abortion is just a “late-ish” kind of abortion and who criticizes state partial-birth abortion laws as “ginned up” by fake controversies and bogus data.
 
And as I explained earlier, a vote for this nominee is a vote in favor of Obamacare.  That’s why she’s being hurried onto the Fourth Circuit ahead of nominees to other courts of appeals.  

It’s the distinguished Majority Leader’s simple math.

This is perhaps the most liberal judicial nominee we’ve seen from this President so far, which is why I’m going to vote no on this nomination and urge my colleagues to do the same.  
 

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