Prepared Floor Statement of Senator Chuck Grassley of Iowa
Ranking Member, Senate Judiciary Committee
On the nomination of Robert Wilkins,
to be U.S. Circuit Judge for the District of Columbia Circuit
Monday, January 13, 2014
Mr. President,
Today we’ll vote on the third of three nominees to the D.C. Circuit, Judge Robert Wilkins. I’ll oppose the Judge Wilkins’ nomination, just as I did when the Senate rejected the nomination in November of last year.
This circuit, of course, is far and away the least busy in the country. That is one of the reasons why the Democrats blocked nominees to this very same circuit – based on the very same arguments regarding caseload – during the Bush Administration.
There were only two differences between then and now:
(1) Back then, the caseload was even higher;
(2) Back then, there was a Republican in the White House.
Today, of course, there is a Democrat in the White House and the Democrat majority in the Senate.
Today, Senate Democrats don’t want to play by the same rules they pioneered or by the same standards they established during the last Administration.
So, even though the Senate considered and rejected this nomination just a couple months ago, today we’ll vote again on Judge Wilkins’ confirmation.
We’ll vote on the Judge Wilkins’ nomination today, because on November 21, 2013, the Majority Leader and the Senate Democrats invoked the so-called nuclear option.
In one fell swoop, the Majority Leader did more damage to this institution than I’ve witnessed in more than three decades of service in the Senate. In fact, when the Majority Leader broke the rules to change the rules in November – and tossed aside two centuries of Senate history and precedent – he likely did more damage to this institution than any Leader who preceded him.
It was a power grab, of course. But it was more than that. It fundamentally altered the way the Senate operates.
It stripped the Minority of its rights under the rules, of course. But it was more than that, too. It cheapened the “world’s greatest deliberative body.”
It forever altered the Senate’s design. And it did it via brute force, with zero buy-in from the Minority.
The result is less cooperation. More partisanship.
That’s before you consider the current state of affairs regarding amendments on the Senate floor. The Majority Leader routinely blocks all Senators from offering amendments by “filling the tree,” and then sets aside his “blocker amendments” for only those amendments HE considers appropriate.
When you take into consideration the inability of Senators to offer amendments of their choosing, and combine it with the Majority Leader’s decision to strip the Minority of their right to extended debate on nominations, it becomes clear why today’s Senate operates the way it does.
There are two great rights of United States Senators:
(1) The right to debate; and,
(2) The right to amend.
By stripping away, on the one hand, the right to extended debate on nominations, and denying Senators, on the other hand, the right to offer amendments, the Majority Leader has taken those two rights and shredded them. It’s to a point where some members of this body don’t even have a full appreciation for the way the institution used to operate.
Is it any wonder that it’s difficult to get things done in today’s Senate? Is it any wonder senators don’t feel compelled to work together?
So, today we will vote on a nomination that the Senate rejected just a couple months ago.
And now – perhaps because the other side is having a bit of “buyer’s remorse” – some of my colleagues have been doing their best to re-write history.
Senate Democrats claim Republican opposition to the D.C. Circuit nominees was “unprecedented,” but conveniently fail to mention that Senate Democrats set the standard during the Bush administration when they blocked qualified nominees to the D.C. Circuit based on caseload.
And as I’ve said, back then the caseload was higher than it is today.
The fact of the matter is that D.C. is the most under-worked circuit court in the nation.
I won’t go into all the statistics today, but with the most recent data released by the non-partisan Administrative Office of the U.S. Courts, the numbers still show the D.C. Circuit has the fewest number of appeals filed and appeals terminated among all the federal circuit courts.
On a per active judge basis, the D.C Circuit now has 111 total appeals filed per active judge. The national average is over three times higher at 377. The busiest court, the Eleventh Circuit, comes in at over seven times higher at 796. In other words, a federal appellate judge sitting in Florida has a work-load seven times heavier than a circuit judge sitting in D.C.
And don’t fall for the phony argument that cases in the D.C. Circuit are more complicated. There are other circuits that handle more of these so-called “complex” cases than D.C.
The bottom line is the empirical data has shown, and continues to show, that these judges could’ve been better used in other circuit courts.
To confirm what the statistics show, early last year I decided to go straight to the source: the judges themselves. Before these nominations to the D.C. Circuit were even made, I submitted a questionnaire to each D.C. Circuit Court judge asking them about their workload.
Their responses independently confirmed what the data showed: the court is severely underworked.
One judge responded, “If any more judges were added now, there wouldn’t be enough work to go around.”
So, after looking carefully at the data and confirming my understanding with the judges themselves, I opposed these nominations based in part on the same standards established by the Democrats during the Bush Administration when they blocked nominees to the D.C. Circuit.
But that, of course, wasn’t the only reason for opposition to these nominees. For instance, gun rights supporters are opposed to Judge Wilkins, not based on the caseload, but because of Dearth v. Holder, where Judge Wilkins held that non-resident U.S. citizens don’t have the Second Amendment right to purchase a firearm.
And of course, the last nominee we confirmed to the D.C. Circuit was about the farthest thing from a mainstream nominee as you can get. I won’t repeat everything that nominee had said and written, but I’ll give you just one example.
Consider former Professor Pillard’s 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.”
Think about that. Former Professor Pillard argued the challenge to the “ministerial exception” to employment law represented a “substantial threat to the American rule of law.”
Yet, the court rejected that view 9-0, and held “it is impermissible for the government to contradict a church’s determination of who can act as its ministers.”
Do my colleagues honestly believe that it’s within the mainstream to argue churches shouldn’t be allowed to choose their own ministers? I don’t believe that it is.
So, we know these judges aren’t needed. Far from it.
We know these nominees aren’t mainstream. Far from it.
Then why did Senate Democrats go to such lengths to stack this court? Why go so far as to change the Senate rules in order to fill these vacancies?
Because the President and his Senate allies will do whatever it takes to get their way, even if that means breaking Senate rules, silencing debate, circumventing Congress, or stacking the judicial deck in their favor to ensure that their executive actions are rubberstamped by the courts.
It’s no secret the President has decided to circumvent Congress by relying heavily on executive orders and regulatory action to carry out his unpopular agenda.
We’ve all heard the President pledge repeatedly, “if Congress won’t act, I will.”
What he means, of course, is that he will rule by Executive action.
He won’t go to Congress.
He won’t negotiate.
He’ll go around Congress.
He decided he doesn’t need legislators to enact legislation.
He’ll just issue an Executive Order or issue new agency rules.
As I’ve explained before, in effect, the President is saying:
‘If the Senate won’t confirm who I want, when I want them, then I’ll recess appoint them when the Senate isn’t even in session’;
‘If Congress won’t pass Cap and Trade fee increases, then I’ll go around them and do the same thing through administrative action at the Environmental Protection Agency’;
‘If Congress won’t pass gun control legislation, then I’ll issue a series of Executive Orders’;
That is what the President means when he says, “if Congress won’t act, I will.”
But remember, under our system, it’s the courts that provide a check on the President’s power. It’s 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 his Executive Orders.
That is why it is so important for the President and his Senate allies to stack the D.C. Circuit, even though the D.C. Circuit doesn’t have enough work.
Now, as I’ve said, in the last few weeks the other side has attempted to re-write history in an effort to justify the actions they’ve taken.
But the other side’s effort to re-write history isn’t limited to the history of the D.C. Circuit, in particular. It extends to the number of so-called “filibusters” during the past few years.
Several times last week, Senate Democrats claimed Republicans filibustered 20 of Obama’s district court nominees. According to their narrative, only 23 nominees have been filibustered in the history U.S. Senate, and 20 occurred in the past five years.
That’s not remotely true, and they know it.
As near as I can tell, this claim is based on the number of times a cloture motion has been filed on a district court nominee. Of course, everyone knows a cloture petition isn’t a filibuster. A “filibuster” is the failure to end debate.
Nonetheless, let’s look at those 20 nominees. 17 of them were filed at one time back in March 2012. That maneuver, of course, was a transparent effort to manufacture a crisis where none existed. Every single one of those cloture petitions was later withdrawn. As a result, not one of those 17 nominees even had a cloture vote, let alone a failed cloture vote.
In fact, of these 20 so-called filibusters of district court judges, the Senate held only one cloture vote on a district court judge. And that cloture vote passed.
Yet, Senate Democrats still claim that we’ve “filibustered” 20 district court nominees. That’s revisionist history if I’ve ever seen it.
So, let’s review the alleged Republican obstruction of the President’s nominees.
Since President Obama took office, the Senate has approved 218 of the president’s lower court judicial nominees.
We have rejected only two. If the Majority Leader hadn’t invoked the nuclear option, that number would’ve been 5.
Not 20. Not 34 as I’ve heard some claim. Not even 10, which was the number Senate Democrats had blocked by the fifth year of President Bush’s administration. Five nominees.
At the end of the day, the Majority was willing to toss aside two centuries of Senate practice and tradition over just five judicial nominees.
So I continue to oppose this nomination. Just as I did when the Senate rejected the nomination before the Senate Democrats broke the rules.
This judgeship wasn’t warranted before the Majority Leader and the Democrats invoked the misguided nuclear option and it certainly hasn’t suddenly become warranted in the weeks since that time.
I yield the floor.
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