Floor Statements

Mr. President, I ask unanimous consent the order for the quorum call be rescinded.

Mr. President, I know we are not voting on this nomination today. I think it will be tomorrow. But I do not think there will be time to make remarks tomorrow, so I am expressing not only my opposition to the nominee being confirmed but also the bigger issue of whether or not there should even be any additional judges put on the DC Circuit.

Approximately 6 months ago, on June 4, 2013, the President simultaneously nominated three people for the DC Circuit. Everyone knew then, just as they know now, that these judges are not needed. The DC Circuit has the lowest caseload in the country by far, based on the standards that the Democrats established just a few years ago when a Republican was in the White House. In fact, the caseload on the DC Circuit is so low that on April 10, 2013, approximately 2 months prior to these nominations, I introduced legislation together with every Republican member of the committee to eliminate one seat of the DC Circuit and move two others to different circuits where they had bigger caseloads and needed additional help. That would be the sensible way to address this issue. Don't spend $1 million in taxpayers' money, per year, per judge, on judgeships that are not needed.

That is common sense, especially when the judges currently on the court say--and I quote one of them--in a letter:

If any more judges were added now there wouldn't be enough

work to go around.

Don't waste $3 million a year. Instead, simply move the seats to where they are needed, where there is a much bigger caseload. That would be the sensible and the good government approach.

But being sensible and good stewards of taxpayer dollars is not what the other side had in mind when they hatched this scheme. Far from it. No, the administration's move here was clear from the very beginning. They knew they could not pass their liberal agenda through a divided Congress. The American people had already rejected that agenda at the ballot box. But the administration still runs the Federal agencies, and through the agencies the administration can ignore the will of the American people and continue to pursue a job-killing agenda.

It doesn't matter that the American people do not want their government to pass cap-and-trade fee increases. The administration will simply force it upon the American people anyway through the Environmental Protection Agency.

It doesn't matter that the employer mandate penalty under ObamaCare does not apply to the 34 States that have not created insurance exchanges. The administration forced the employer mandate upon the American people anyway through an IRS regulation.

This has been the plan of the administration. It cannot get its liberal agenda through the Congress, but it has saddled the American people with its job-crushing agenda anyway through agency regulation.

But there is a catch to this scheme, a very big catch. Agency decisions are reviewed by the Federal judiciary. That happens to be our very independent third branch of government. So for this scheme to work, the White House needed to stack the DC Circuit with judges who were rubberstamps for its agenda.

As a result, the administration decided to ram their agenda through the agencies and simultaneously stack the DC Circuit with judges they believe would rubberstamp that agenda. That is why, on the very same day the President made these three nominations, I said:

It's hard to imagine the rationale for nominating three

judges at once for this court given the many vacant emergency

seats across the country, unless your goal is to pack the

court to advance a certain policy agenda.

During the last few months we have debated this issue, and throughout the debate the other side has tried their best to obscure the objective. They have manipulated caseload statistics in an effort to deny the obvious: Judges are not needed and will not have enough work to go around as is.

They twisted the words of the administrative office of the U.S. Courts. They claimed that the Chief Justice of the United States believes these judgeships are needed, when of course statistics show that is not remotely close to being true. They even stooped so low as to accuse Republicans of gender bias. But no matter how the other side manipulated the data or tried to conceal their agenda, they could not overcome the simple and basic facts everyone knew to be true; that is, that under the standard established by the Democrats under the Bush administration, these judgeships are not needed and should not be confirmed.

As a result, when the Senate considered these nominations, it denied consent. The other side lost the debate. Under normal circumstances, that would have been the end of this matter but not this time. This time there is a Democrat in the White House, not a Bush in the White House, and a Republican minority in the Senate.

The caseload statistics that carried the day in 2006 when we had a Republican majority in this body no longer matter to today's Democratic majority. This time apparently there are only three Members of the majority who care more for the Senate as an institution than they do for their party or short-term political gain. Of course, the biggest difference is that this time what is at stake is a radical agenda and the other side's effort to remove any meaningful check and balance on that agenda.

In short, it is ObamaCare. In short, it is climate change regulation, and the method for doing it is Presidential rule by fiat. The other side decided they were no longer willing to play by the rules they established and pioneered in 2006 when we had a Republican President and a Republican majority in the

Senate. They lost the debate, so a couple weeks ago they changed the rules of the game in the middle of the fourth quarter. They triggered the so-called nuclear option because salvaging ObamaCare and insulating cap-and-trade fee increases from meaningful judicial review were just two important ideological battles that this administration wanted to get done one way or the other.

But, as I said, the end game for this scheme has been clear ever since it was formulated. So I wasn't surprised to read media accounts confirming the reasons the Democrats broke the Senate rules in order to get these nominees confirmed.

For instance, on November 23, The Hill newspaper ran an article with this headline: ``Filibuster change clears path for Obama climate regs crackdown.'' The Hill newspaper had this to say:

Green groups might be the biggest winners from Senate

Democrats' decision to gut the minority party's filibuster

rights on nominations. Their top priority--President Obama's

second-term changes on climate change--is likely to have a

better shot at surviving challenges once Obama's nominees are

confirmed for the crucial U.S. Court of Appeals for the

District of Columbia.

The Washington Post wrote:

Democrats say the shift in the court will be especially

important given that Obama's legislative proposals have

little chance to prevail in the GOP controlled House. . . .

The most contentious issues likely to face the appeals court

are climate change regulations being pursued by the EPA. . .

. The measures represent Obama's most ambitious effort to

combat climate change in his second term--coal-fired power

plants are a key source of emissions--at a time when such

proposals have no chance of passage in Congress.

The same Washington Post article acknowledged the importance of removing the judicial check on ObamaCare.

The court is expected to hear a series of other legal

challenges as well, including lawsuits related to elements of

the Affordable Care Act, the Consumer Financial Protection

Bureau and new air-quality standards.

Here is how one liberal environmental media outlet described the change:

When the Senate Democrats blew up the filibuster Thursday,

they didn't just rewrite some rules. They struck a mortal

blow to a tradition that has blockaded effective action on

climate change.

According to media reports, it was these same liberal interest groups that pressured the majority leader to break the rules in order to change the rules. According to The Hill newspaper:

[The] Sierra Club was part of a coalition of liberal groups

and unions that pressured Senate Majority Leader Harry Reid

to limit the use of the filibuster through a majority vote.

So if there was any doubt whatsoever about why the other side took such drastic action--changing the very historic process of the Senate-- there should not be any doubt any longer. The other side could no longer stand up to the more extreme wing of their party. Under pressure from those interest groups, the other side willy-nilly tossed aside some 225 years of Senate history and tradition.

What is more, by joining the majority leader and voting to break the rules, every Senator who did so empowered the President to install judges whose appointments are specifically designed to rubberstamp the President's regulatory agenda. No one is going to be able to hide from this vote. Not only is this a power grab, it is much more than that. It is the erosion of a constitutional principle which has been established since 1787--and stated very clearly in the Federalist Papers--why the separation of powers is so important to our government. It was to make sure that no one person has all the power. The White House is so committed to a policy agenda that the American people don't want that it co-opted the majority of the Senate in its scheme to remove a meaningful judicial check on the executive branch of government and their agenda.

This is about a White House trying to rig the game so it can impose its cap-and-trade fee increases on the American people even though the American people don't support it. This is about a last-ditch effort to salvage ObamaCare and regulations, such as the IRS rule imposing the employer mandate penalty in 34 States, which is in direct conflict with the statute. How will they do it? By installing judges the White House believes will rubberstamp their edict.

I urge my colleagues to stand up to this White House, stand up to the radical liberal interest groups. Don't cast your vote for cap-and-trade fee increases and for judges that will rubberstamp that and don't cast another vote for ObamaCare. Instead, vote against this nomination. It is not needed.

I yield the floor.

I object.

Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of H.R. 3626, which was received from the House. I ask unanimous consent that the bill be read a third time and passed and that the motion to reconsider be made and laid upon the table, with no intervening action or debate.

Mr. President, I don't think I find fault with anything Senator Schumer said, except as a matter of timing and when to consider those things. Before making any changes to current law, Congress needs to gain an understanding of printed gun manufacturing technology and its relation to permanent metal parts. There are other technical issues that should be resolved before any legislation passes that reflects scientific and manufacturing process realities.

Today is the day the current plastic gun ban expires. The House had already passed a 10-year extension on a bipartisan vote. The only way to be sure the current ban remains on the books is to pass the House bill, which the Senate just did. Since the Democrats wish to extend current law, there are no current circumstances that demanded immediate changes to the law.

Every previous extension of the bill has occurred on a bipartisan basis and has lasted for at least 5 years so that Congress does not need to constantly revisit it. Before Thanksgiving, my colleague, the Senator from New York, offered only a 1-year extension. Ten years is much better, and the 1-year extension proposal contained none of the substantive provisions the Senator from New York offered with mere hours to go before current law expires.

After the Senate passes the House bill--which we did--Congress then has a responsibility to review the issue, hold hearings and obtain expert testimony, and consider alternative legislation, including what the Senator from New York has suggested. The date of expiration of the current ban has been set for many years. If anybody in the Senate is so concerned about what they consider to be a loophole in the law, this obviously should have been done through hearings and the introduction of legislation long ago. We did not even see the language of the proposed amendment I objected to until this afternoon. Dropping a bill at the eleventh hour without any investigation into the technological situation demonstrates that their real objectives were things other than just getting an extension.

Under current law, ``the Attorney General shall ensure that rules and regulations adopted pursuant to this paragraph do not impair the manufacture of prototype firearms or the development of new technology.'' That is a quote from the proposed language that I objected to--or that is in present law, but the amendment of the Senator from New York strikes that language. It seems to me that the Justice Department's regulations should not impair new technology or firearm manufacturing, so I don't know why that change should have been suggested. I am willing to listen to anybody's arguments to the contrary, but that is the way I see it, and I am glad we have taken the action we have.

I yield the floor.

Mr. President, we didn't have a chance to debate the change in rules, and we should have, so I am going to speak now on some things I think should have been said before we voted--not that it would have changed the outcome but because we ought to have known what we were

doing before we vote rather than afterward. So I will spend a few minutes discussing what the majority leader did on the so-called nuclear option.

Unfortunately, this wasn't a new threat. Over the last several years, every time the minority has chosen to exercise his rights under the Senate rules, the majority has threatened to change the rules. In fact, this is the third time in just the last year or so that the majority leader has said that if he didn't get his way on nominations, he would change the rules. Ironically, that is about as many judicial nominees as our side has stopped through a filibuster--three or so.

Prior to the recent attempt by the President to simultaneously add three judges who are not needed to the DC Circuit, Republicans had stopped a grand total of 2 of President Obama's judicial nominees--not 10, as the Democrats had by President Bush's fifth year in office; not 34, as one of my colleagues tried to suggest earlier this week; no, only 2 had been stopped. If we include the nominees for the DC Circuit, we have stopped a grand total of 5--again, not 10, as the Democrats did in 2005; not 34, as one of my colleagues tried to argue earlier this week but 5. During that same time we have confirmed 209 lower court Article III judges. That is a record of 209 judges approved to 5 who were not approved. So this threat isn't based on any crisis. There is no crisis.

I would note that today's Wall Street Journal editorial entitled ``DC Circuit Breakers: The White House wants to pack a court whose judges are underworked'' lays out the caseload pretty clearly.

I ask unanimous consent to have printed in the Record the editorial to which I just referred.

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

The other side claims they were pushed to this point because our side objected to the President's plan to fill the DC Circuit with judges the court does not need, but the other side tends to forget history. History is something we ought to learn from, so let's review how we got here.

After the President simultaneously nominated three nominees who are not needed for the DC Circuit--a blatant political power grab in its own right--what did the Republicans do? Well, we did something quite simple: We said we want to go by the rules the Democrats set in 2006. We said we would hold those Democrats to the same standard they established in 2006 when they blocked a nominee of President Bush's by the name of Peter Keisler.

Let's be clear about why the Democrats are outraged. Democrats are outraged because Republicans actually had the temerity to hold the other political party to a standard they established, and because we did, because we insisted we all play by the same rules, they came right back and said: Then we will change the rules. In effect, the other side has said: 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. And that is what happened today.

We hear a lot of ultimatums around here, but this ultimatum was not run-of-the-mill. It was very different. It was different because this threat was designed to hold the Senate hostage. It was different because it is designed to hold hostage all of the Senate's history and traditions and precedents. It was different because its effectiveness depends on the good will of Senators who don't want to see the Senate as we know it destroyed or function other than as the constitutional writers intended.

I would note that today's majority didn't always feel that way--the very way we have seen expressed 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:

The nuclear option was the most important issue I have

worked on in my public life. Its rejection was my proudest

moment as a 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 Democratic colleagues had this to say, referring to when Republicans were in the majority:

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 traditions 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 nuclear option would destroy

the Constitution's design of the Senate as an effective check

on the executive.

So here we have two quotes from Democrats in the 2005-2006 timeframe very strongly supporting the precedent of the Senate in using the filibuster to protect minority rights. But that was when they were in the minority. Now

they are in the majority, and the tradition of the Senate doesn't mean much.

Here is another quote 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 way back then--just 6, 7 years ago 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--the majority party of today--to their own standard. Why? Why would the other side do this? There clearly isn't a crisis on the DC Circuit. The judges themselves say that if we confirm any more judges, there won't be enough work to go around. And it is not as if all of these nominees are mainstream consensus picks despite what the other side would have us believe, that they are somewhat mainstream.

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?

What about her views on religious freedom? She argued that the Supreme Court's 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.'' Now, get this. After she said that, the Supreme Court rejected her view 9 to 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 and on, but I hope my colleagues get the picture.

The point is this: Voting to change the Senate rules is voting to remove one of the last meaningful checks on the President--any President--and voting to 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 have 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 Democratic votes.

You can't get all of your side to support ObamaCare? Do whatever it takes: Resort to things like the ``Cornhusker kickback.''

You lose your 60th 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 health care? Do whatever it takes: Tell the American people it isn't a tax and then argue in the court that it is a tax.

The American people want to keep their health care? Do whatever it takes: Promise them ``if you like your health care, you can keep it'' and then issue regulations making it impossible.

Your labor allies want out from under ObamaCare? Do whatever it takes: Consider issuing them--labor--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 is still in session.

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? Well, 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 DC Circuit Court in your favor.

Frustrated when the court curbs your power on recess appointments? Do whatever it takes: Stack the DC Circuit with your favorite appointees-- people who will rule in your favor.

Worried EPA's regulations on cap-and-trade fee increases might get challenged in the court? Do whatever it takes: Stack the DC 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 Senate. That is what we have witnessed today, nothing but 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 that if they can stack the deck on the DC 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 one-sixth of this wonderful Nation's economy--why, when millions of Americans are losing their health care--why did you choose this moment to hand the keys to the kingdom over to the President, a President with less check on his authority?

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.

I will 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 is that the majority won't stop making these demands. We can't always 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 which will always be true, it is this: Majorities are fickle. Majorities are fleeting. Here today, gone tomorrow. That is a lesson that, sadly, most of my colleagues on the other side of the aisle haven't learned for the simple reason that they have 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 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.

Madam President, I wish to reiterate my strong support for Senator Gillibrand's reforms to the military justice system. I am proud to be an original cosponsor of this act, and I should add it has been a pleasure working with Senator Gillibrand on the issue. Her passion and commitment to rooting out sexual assault in the military ought to be inspiring to all of us, and watching how she negotiates and how she lobbies for her ideas can teach all of us a good lesson.

I should also add that I appreciate the work of the Armed Services Committee, which added a large number of commonsense reforms to the underlying bill. In fact, some of them are so commonsense that one has to wonder why the military hasn't adopted them already or, if need be, asked for legislation to do so before now.

For instance, the bill before us provides that people convicted of certain sexual assault offenses may not join the Armed Forces--common sense. It requires mandatory discharge from the Armed Forces of any member convicted of certain sexual assault offenses--common sense. It directs a comprehensive review of the adequacy of training pertaining to sexual assault prevention and response--common sense.

The underlying bill also has a number of provisions to address certain concerns about commanding officers not handling sexual assault charges properly but still keeps this judicial process in the chain of command. That is inappropriate; hence, this amendment.

We have tried working within the current system. This isn't a new issue. Military leaders have been making emphatic promises about tackling the problem of sexual assault for years and years, but the problem only seems to be getting worse. What is more, the current system appears to be part of the problem. There is a culture that has to change, and it won't change by itself.

According to a recent Defense Department report, 50 percent of female victims stated they did not report the crime. Why? Because they believed that nothing would be done with their report.

Seventy-four percent of females and 60 percent of males perceive one or more barriers to reporting sexual assault. Sixty-two percent of the victims who reported a sexual assault indicated they received some form of professional, social, or administrative retaliation. This should not happen in a military where everybody ought to be looking out for everybody else.

A very cohesive unit is essential for everybody's protection but also for the success of the mission. So it is a terrible deterrent when sexual assaults ought to be reported 100 percent but aren't. If sexual assault cases are not reported, it is quite obvious, common sense tells us they can't be prosecuted. If sexual assault isn't prosecuted, common sense ought to tell us it leads to predators remaining in the military and a perception that that sort of activity will be tolerated or a person can get away with it. Common sense tells us that people get away with it.

By allowing this situation to continue, we are putting at risk the men and women who have volunteered to place their lives on the line. We are also seriously damaging military morale and military readiness. Taking prosecutions out of the hands of commanders and giving them to professional prosecutors who are independent of the chain of command will help ensure impartial justice for the men and women in uniform.

I know some Senators will be nervous about the fact that the military is lobbying against this legislation. There is a certain awe that permeates among Senators when people with stars on their shoulders appear among us. We are being asked, once again--that environment is here--to wait and see if the latest attempt to reform the current system will do the trick. I respond that the time for trying tweaks to the current system and waiting for another report or study has long since passed.

We also hear that this measure will affect the ability of commanders to retain good order and discipline. I would like to be clear that we in no way take away the ability of commanders to punish troops under their command for their military infractions. Commanders also can and should be held accountable for the climate under their command. But the point here is sexual assault is a law enforcement matter, not a military one.

If anyone wants official assurances that we are on the right track, we can take confidence in the fact that an advisory committee appointed by the Secretary of Defense himself supports our reforms. On September 27 of this year, the Defense Advisory Committee on Women in the Services--and I believe that acronym is DACOWITS--voted overwhelmingly in support of each of the components of the Military Justice Improvement Act amendment.

This advisory committee isn't something new. These various advisory committees under different Secretaries of Defense have been around since 1951 when they were created by then-Secretary of Defense George C. Marshall. The committee is composed of civilian and retired military men and women who are appointed by the Secretary of Defense to provide advice and recommendations on matters and policies relating to the recruitment and retention, treatment, employment, integration, and well-being of highly qualified professional women in the Armed Forces. Historically, this advisory committee's recommendations have been very instrumental in affecting changes to laws and policies pertaining to military women.

The bottom line is--and, again, this is common sense--this isn't some advocacy group or fly-by-night panel. It is a longstanding advisory committee handpicked by the Secretary of Defense, and it supports the substance of our amendment to a tee.

I know it is easier to support incremental reforms. That is even prudent in some cases. However, when we are talking about something as serious and life-altering as sexual assault, we cannot afford to wait any longer than we already have. Our men and women serving in this military deserve bold action to solve this problem--not in a few years or a little bit at a time but right now. So I urge my colleagues to be bold and join us in this effort. It is the right thing to do.

It seems to me as though a lot of debates in this body get complicated, and this one seems to be complicated too by some people. But it is really a very simple issue. It doesn't need to be this complicated, because it talks about changing the culture. I know there are cultures in every bureaucracy that need to be changed that affect their operations, but none of them are as damaging as the No. 1 responsibility of the Federal Government. So a culture in the Defense Department has to be taken seriously. We have to change the culture.

When one joins the military--and I haven't been in the military so I don't speak with authority, but it seems to me as I understand the military--I have a grandson in the Marines and I had sons in the military. But when a person joins, they join because they feel that everybody in that unit will have each other's back. There should be no fear of anyone--anyone--in the unit. There should be nothing but respect for each other. Members of the military should have confidence in each other and loyalty toward each other. They are all on the same mission. None of them should be considered an enemy. None of them should have any particular power over another. That is what this sexual assault thing is all about--power over weak individuals--not weak because of who they are, but weak because of the power of the people above.

This is badly needed legislation.

I yield the floor.

Mr. President, today, I am announcing my intention to object to any unanimous consent request to call up and confirm the nomination of Mr. Jeh Johnson to be the Secretary of the Department of Homeland Security.

As ranking member of the Senate Judiciary Committee, I, along with other Senators on the committee, wrote a letter to Mr. Johnson last Friday and asked his views on a number of important matters, including our Nation's immigration policies and the fair treatment of whistleblowers. We asked if he would cooperate with us on oversight matters and work with us to improve immigration policies going forward. We have not yet received a response from Mr. Johnson.

Because the Judiciary Committee has primary responsibility over immigration matters, it is necessary to know any nominee's position on immigration policies before we can consent to the confirmation of a Secretary to head this very critical department. So, until we receive responses from Mr. Johnson to our letter, I will object to any unanimous consent agreement to move his confirmation.

I ask that a copy of the letter be printed in the Record.

Madam President, I wish to address another round of attacks that have been spearheaded by Big Oil against America's biofuels producers.

As its market share for Big Oil dips, Big Oil is doubling down to swat down its perennial pinata. This time around, petroleum producers and food conglomerates are using environmental groups as political cover to gain traction on efforts to pull the plug on the renewable fuel standard that we often refer to as RFS.

This is a ridiculously transparent and very much self-serving assault by these special-interest groups. Their relentless campaign to discredit ethanol undermines America's longstanding efforts to diversify its energy landscape, fuel the economy, and, most importantly, strengthen our national security.

The predictable efforts to smear ethanol's reputation ignore the renewable fuel's valuable contribution to clean energy, rural development, job creation, and U.S. energy independence. The latest round of misguided untruths disregards the plain truth. The plain truth is ethanol is renewable, it is sustainable, it is a clean-burning fuel, and all this helps run the Nation's transportation fleet with less pollution and less imported oil.

Let me remind my colleagues, most of that imported oil comes from countries that hate us and use our money to potentially kill Americans. Yet critics continue to hide behind distortions that claim ethanol is bad for the environment, and those distortions I wish to discuss.

I wish to separate fact from fiction regarding ethanol's impact on the environment. Critics say farmers are putting fragile land into production to cash in on higher corn prices at the expense of soil erosion and clean water.

That argument is not good under any respects. It may have been better last year and the year before when corn was $7, but corn is about $4 a bushel now--hardly making ends meet. They point out that 5 million Conservation Reserve Program acres are no longer enrolled in the conservation program since 2008. They want to pin the blame on ethanol. But the facts are, first of all, fewer acres enrolled in CRP has more to do with Federal belt-tightening, meaning spending less money here in Congress, than land stewardship decisions made by corn farmers.

The 2008 farm bill had a lot to do with it. That farm bill built upon other stewardship incentives for American farmers and ranchers administered by the U.S. Department of Agriculture, including the Environmental Quality Incentives Program, wetland restoration, and wildlife habitat programs. So land put into these programs under the 2008 farm bill takes land out of crop production, but it is not the ethanol industry that has done it. It is Federal policy.

For instance, a Wetlands Reserve Program in 2012 had a record- breaking enrollment of 2.65 million acres. The Wetlands Reserve Program lands cannot be farmed for 30 years, so they aren't going to be raising corn on that land to produce ethanol.

According to the Environmental Protection Agency, no new grassland has been converted to cropland since 2005. Farmers must make marketing, planting, and stewardship decisions that keep their operations financially sound and productive from crop year to crop year.

Even more importantly, these decisions must be environmentally sustainable for the long haul, both from the standpoint of the farmer's economic well-being as well as meeting certain laws that require that.

So let me be clear: Farmers simply can't afford to not take scrupulous care of the land that sustains their livelihoods.

Fertilizer use is on the decline. Compare application per bushel in 1980 versus 2010: Nitrogen is down 43 percent, phosphate is down 58 percent, and potash is down 64 percent.

Ethanol burns cleaner than gasoline. According to the Oregon National Laboratory, corn ethanol reduces greenhouse gas emissions by 34 percent compared to gasoline. If the oil industry wants to talk about the environment, we should not forget--and I will remind them and the people behind this move--about the 1989 Exxon Valdez oilspill or the 2010 Deepwater Horizon oilspills in the Mexican gulf. Critics also say that the renewable fuel standard is driving more acres into corn production. Well, the fact is, if facts mean anything, the RFS is driving significant investment in higher yielding, drought-resistant seed technology that very much enhances production per acre. This is a win-win scenario, to cultivate good-paying jobs, mostly in rural America, and to harvest better yields on less land.

The total cropland planted to corn in the United States is decreasing. Let's compare this year's crop year when U.S. farmers planted 97 million acres of corn--97 million corn acres. In the 1930s, farmers planted 103 million acres of corn. Farmers have increased corn harvests through higher yields, not more acres.

Critics contend the Nation's corn crop is diverted for fuel use at the expense of feed for livestock and higher prices at the grocery store. But what are the facts? In reality, one-third of the corn processed to make ethanol reenters the marketplace as high-value animal feed called dried distillers grain. Livestock feed remains the largest end user of corn.

I get so darn tired of hearing people from Big Oil or these environmental groups or these big supermarket conglomerates say that 40 percent of the corn produced goes into ethanol when they don't give credit for the 18 pounds of every 56-pound bushel of corn, 18 pounds, or one-third of it, is used for animal feed. So when coproducts such as the dried distillers grain are factored in, then ethanol consumes only about 27 percent of the whole corn grain by volume. Livestock feed uses 50 percent.

Critics have also pursued the false accusation that the increased production of biofuels increases grocery prices. Again, nothing could be further from the truth. The facts are that the U.S. Department of Agriculture Secretary has said farmers receive about 14 cents of every food dollar spent in the grocery stores, and the farmers share of a $4 box of corn flakes is only 10 cents.

So what is at stake when a coalition of special interests tag-teams to pull

the rug out from underneath the Nation's ethanol policy? Well, there is a lot at stake. Unfortunately, these flawed attacks on ethanol and next-generation biofuels undermine America's effort to move forward with an aggressive, diversified energy policy that takes into account global demand, geopolitics, and U.S. economic growth.

It has resulted in an EPA that has wholeheartedly adopted this false narrative promoted by Big Oil and Big Oil allies. On Friday, then, the EPA released its proposed rule for the required volumes under the renewable fuel standard for next year. The EPA in this proposal chose to reduce the overall biofuels mandate. Rather than increase the amount of biofuel to be blended as the law requires, the EPA has chosen to waive the mandate and suggest that we use less homegrown renewable biofuel in our fuel supply; hence, more dependence upon foreign sources of energy.

It is terribly disappointing that the U.S. biofuels industry is now under attack from President Obama's EPA. This action, which was vigorously pursued by Big Oil, is a slap in the face of our domestic energy producers. Who would have believed that Big Oil found an ally in President Obama's EPA since he has been such a defender of biofuels and all green energy.

Who would have expected the Obama EPA to be more harmful to our domestic biofuels effort than President Bush ever was? President Bush was demagoged as an oil man from Texas. But he never undermined biofuels to the extent that this proposal from this EPA would.

In making this announcement, the EPA said the challenges to supplying more ethanol to the market are too great because of the so-called blend wall. The fact is the blend wall is a creation of Big Oil. The primary reason ethanol is not blended at levels higher than 10 percent today is because Big Oil has stood in the way.

Congress knew in 2007 that the RFS, renewable fuel standard, would require biofuels to be blended at levels higher than 10 percent. But the petroleum companies fought that every step of the way, going back 4 or 5 years, and finally last Friday they were successful.

Friday's announcement, by the way, by EPA rewarded them for their temper tantrums. The EPA's proposal puts Big Oil in charge of how we implement the renewable fuel standard. It has rewarded Big Oil for its intransigence.

While EPA says its intention is to put the RFS Program on a manageable trajectory that will support continued growth, I want to tell you the exact opposite is true. This proposal is a step back, not a step forward. It undercuts all segments of biofuel--including biodiesel, ethanol, and the advanced biofuels that go by the name of cellulosic ethanol.

While this administration claims to have an energy strategy of ``all of the above,'' this decision by EPA proves it is in favor of ``none of the above.'' Ironically, biofuel producers now know what it is like for traditional energy producers with a bureaucracy that impedes domestic energy production at every turn.

I find this decision baffling. I hope President Obama will see the harmful impacts of the EPA proposal and fix this mistake during the 60- day period EPA must take to consider opinions on this issue.

So there are 60 days to turn this around. I hope we can do that.

I yield the floor.

Mr. President, if I am in order, I would like to speak on the judicial nomination, the vote we are having.

I am going to vote not to bring up the nomination of Judge Wilkins. I have some concerns about his record, but I am not going to focus on those concerns today, because there are a lot bigger issues we are dealing with. I have said it before and I will say it again: By the standards the Democrats established in the year 2006, we should not confirm anymore judges to the DC Circuit, especially when those additional judges cost approximately $1 million per year per judge.

The fact of the matter is, this DC Circuit they want to make three more appointments to--and this will be the third of these appointments we have dealt with--is underworked. The statistics make it abundantly clear, but I am not going to go through them all again as I have in the past. I will mention a couple brief points regarding the caseload. The DC Circuit ranks last, for instance, in both the number of appeals filed and the appeals terminated. These are the cases coming to the court and going out. Not only does DC rank last, but it is not even close. To give you a frame of reference compared to DC, the Eleventh Circuit, which has the highest caseload, has over five times as many appeals as are filed here in the DC Circuit. The same is true for appeals terminated. Again, it is not even close. The Eleventh Circuit has over five times as many appeals terminated as the DC Circuit.

The bottom line is that the DC Circuit does not have enough work as it is right now, let alone if we were to add even more judges, in this case the President's desire to add three.

That is why the current judges on the court, the current judges, have written to me and said things such as: ``If any more judges were added now, there wouldn't be enough work to go around.''

As I said last week, at least some on the other side concede that the DC Circuit's caseload is low, but they claim DC's caseload numbers don't take into account the complexity of the court's docket based upon the number of administrative appeals filed in that circuit.

As I have said, this argument doesn't stand against scrutiny. My colleagues argue that the DC Circuit docket is complex because 43 percent of its dockets are made up of administrative appeals. Of course, there is a reason they cite a percentage rather than a number. That is because it is a high percentage of a very small number.

When we look at the actual number of these 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 the DC Circuit, but in the Second Circuit there were 1,493 filed.

Stated differently, in DC there were only 64 administrative appeals per active judge. The Second Circuit has nearly twice as many with 115 files. Again, that is 64 administrative appeals per judge in DC compared with almost twice as many with the Second Circuit at 115.

This entire argument about complexity, I hope, comes out to be nonsense to most of my colleagues. To hear the other side, it is an outrage that we would hold them to the same standards they established in 2006 when they blocked Peter Keisler's nomination to the DC Circuit based upon caseload.

Since that time, by the standard that the other side established, the court's caseload has declined even further. It has declined so much, in fact, that the number of appeals back then, with 10 acting judges, is roughly the same as there are now with 8 active judges. Again, we didn't set this standard, the Democrats did.

That standard may be inconvenient for Democrats today, but that is not a reason to abandon the standard they established. Remember, the other side established the Keisler standard after the so-called Gang of 14 agreement. Even if that agreement hadn't expired by its own terms at the end of the 109th Congress, the Democrats established the Keisler standard after that agreement supposedly took effect.

As I have said, the other side has run out of legitimate arguments in support of these nominations. That is why they seem to be grasping at straws.

When the other side gasps at straws, they get desperate. When the other side gets desperate, they turn to their last line of defense, accuse us Republicans of bias.

Over the last week or so, my colleagues on the other side have argued that Republicans are opposing nominees based on gender. That argument-- as I said last week and I still say--is offensive and patently absurd.

It is so absurd, in fact, that even the Los Angeles Times called the Democrats' attempt to play the ``gender card'' a ``pretty bogus argument,'' noting that in the past Republicans have ``happily confirmed female nominees.''

The fact is that the Republicans have supported over 80 women nominated to the bench by this President as well as a host of other nominees of diverse backgrounds. Those are the facts. It is unfortunate but sadly predictable that facts may not mean much.

These allegations of gender bias are unfortunate because they represent cheap attacks that the other side knows are untrue. It also is unfortunate because the entire exercise is designed to create the appearance of a crisis where there is no crisis. There is no crisis in the DC Circuit because they don't have enough work to do as it is. There is a crisis occurring now all across the country as a result of the health care reform bill that often goes by the terminology of ObamaCare.

Millions of Americans are losing their health insurance, even though the President promised over and over--we know the quote: ``If you like your health care, you can keep it.''

Even though we have a very real and serious crisis facing this country because of ObamaCare, the other side is desperately trying to divert attention to anything but the ObamaCare disaster.

This is how the Roll Call newspaper described this strategy:

Senate Democrats . . . are readying their next assertive

moves on three other issues important to their base:

Abortion rights

Minimum wage

Federal judiciary

The goal is to divert as much attention as possible away

from the problem-plagued ObamaCare rollout.

Let me get this straight. A crisis is unfolding all across this country as millions of Americans are losing their health insurance because of ObamaCare. Yet the Democrats' strategy, according to Roll Call, is to conceal the ObamaCare crisis by using the DC Circuit as a smokescreen.

That is breathtaking, even by Washington, DC, standards. The other side is so eager to divert attention from the millions of Americans losing their insurance because of ObamaCare that they are willing to manufacture a crisis in the DC Circuit, even though the current judges say: ``If any more judges were added now, there wouldn't be enough work to go around.''

Not only that, but after running out of legitimate arguments to justify the President's attempt to stack the deck on this court, the other side has resorted to making allegations of gender bias. I have already explained that these allegations are offensive and absurd. But since the other side's strategy is to conceal the ObamaCare train wreck with a DC Circuit smokescreen and on top of that is willing to go so far as to accuse our side of gender bias, then I am going to take the opportunity to share some of the frustrations being experienced by my constituents in Iowa, meaning women in Iowa, as a result of ObamaCare.

A woman from Vinton, IA, writes:

After 28 days of complete frustration, I got to look at 30

plans on the Iowa health care exchange at healthcare.gov. The

CHEAPEST one is $1,886 per year with a $6,300 deductible.

Last year, I spent $1,484 on health care. TOTAL. OUT OF MY

OWN POCKET. I wouldn't even meet the deductible paying almost

$350 a month on the one plan offered.

At that rate, what I spent TOTAL last year would be spent

on premiums in 4 months. . . .

With more and more policies being cancelled by the

insurance companies; with more and more doctors refusing to

serve patients with Obamacare; and with the increasing anger

towards elected officials, including President Obama, how do

you plan to fix this mess???

Another woman from Sioux City, IA, writes:

My company just had a meeting inform us of the changes to

our healthcare plan thanks to ``Obamacare''.

It is going to cost me $190 more each month next year for

my family coverage.

I am going to have to work more overtime, reduce my 401K

contributions and opt out of my Flex 125 contributions to try

to recover the extra money coming out of my paycheck because

of the new laws. . . .

While I suppose I should count myself lucky I didn't lose

my employer health insurance coverage, I sure don't feel

happy about the extra money I am going to have to pay for the

same coverage I was getting this year. What a joke.

I wish there was something that could be done about this.

Socialized health care . . .

Then she used a word that I can't repeat in the Senate.

From a mom in Dayton, IA:

Our family's health insurance agency contacted us last week

to set up an appointment to talk to us about the changes in

our health coverage due to Obamacare.

We went to the meeting and found out that our HSA that we

currently have will no longer be available because of

Obamacare, plus our monthly rate will go from $350.00/month

to $570.00/month.

We have no idea how we are going to afford this increase.

We feel blindsided. I know that you are committed to helping

Iowans, as well as all Americans, so I ask that you keep

fighting for affordable healthcare.

My final message is from a woman in Melbourne, IA, who writes:

I got a full in your face understanding of just how

horrible it was today when I went to renew my insurance.

I currently pay $110 every two weeks for insurance for my

whole family.

Next year I will have to pay over $500 every two weeks to

insure my family.

The healthcare website Obamacare created is no better. I

can't even get the website to work properly. It will not

allow me to put my husband on a joint policy with me. . . . I

actually have to weigh which is cheaper . . . paying the fine

or paying for insurance. Sadly it will probably be paying the

fine.

These are real stories from real women facing a real crisis in only 1 State of the 50 States, my State of Iowa. Of course, this isn't happening only in my State. Far from it. This is happening to millions of Americans all across the country.

Rather than focus on this crisis, a real crisis, the other side has developed a strategy specifically designed to divert attention from it. That strategy is to use the DC Circuit as a smokescreen.

In summary, the judges themselves say: ``If any more judges were added now, there wouldn't be enough work to go around.''

Even though we shouldn't fill these seats based upon the Democratic standard set in 2006 and even though filling these seats would waste $3 million per year in taxpayers' money that we don't have, the other side seems, in an unreasonable way, bent upon manufacturing a crisis for cynical, political reasons.

I urge my colleagues on the other side to come to their senses. Let us start focusing on the real crisis facing this country. I urge my colleagues to vote no on the Wilkins cloture petition.

I yield the floor, and I suggest the absence of a quorum.

Mr. President, if you like your health plan, you can keep it. It is a nice sound bite, isn't it? It is also not true. My constituents have learned that the very hard way.

A constituent from Perry, IA, wrote:

My husband and I are farmers. For nine years now we have

bought our own policy. We recently received our letter that

our plan was going away and effective Jan 1, 2014 it will be

updated to comply with the mandates of ObamaCare.

We did not get to keep our current policy. We did not get

to keep our lower rates. I now have to pay for coverage that

I do not want or will never use.

We are the small business owner that is trying to live the

American dream. I do not believe in large government that

wants to run my life.

This failed promise is hitting home but, more importantly, when the President promises something and doesn't keep that promise, it goes way beyond a promise to hurt an individual. It goes to the lack of credibility of all government. What we need to be doing in this country is building up credibility of government to strengthen our institutions of government.

I yield the floor.

Mr. President, Webster's dictionary defines the word success as ``the correct or desired result of an attempt.'' I want to discuss the definition of the word success as we consider the Affordable Care Act.

On the day the bill was signed into law, President Obama said the following:

Today we are affirming that essential truth, a truth every

generation is called to discover for itself, that we are not

a nation that scales back its aspirations.

Such grand words for where we are today on that piece of legislation. Today the success of the law that now bears his name, ObamaCare, is defined in much more meager terms. Today success is when the folks at Health and Human Services got up this morning, ObamaCare had not shut down, and when the folks at HHS go to sleep tonight, their day will have been a success if ObamaCare did not have to shut down.

Think of all that, think of all that we have been through to this point after 4 years, the fight over the bill and the extreme legislative means used to pass it through Congress. Then think about the 2010 and 2012 elections. Think about the Supreme Court decision that effectively repealed half of the law's coverage. Think of all the changes made to the law through regulation to make sure ObamaCare launched. Think of the postponing of the employer mandate. Think of the postponing of lifetime limits. Think of the impact this law has had on our economy. It has had quite an impact on the economy--people losing jobs, people losing health insurance they currently have, because if you like what you have you may not be able to keep it. Let's talk about that issue for a minute.

``If you like what you have, you can keep it'' was the promise the President made to the American people on at least 36 separate occasions. It is a great sound bite. It is easy to say. It rolls easily off the tongue.

It is also not true. It was never true. It was obviously not true when the law was written. It was obviously not true when the first proposed regulation came out. This is what I said on the Senate floor September 2010. Quoting myself:

Only in the District of Columbia could you get away with

telling the people if you like what you have you can keep it,

and then pass regulations 6 months later that do just the

opposite and figure that people are going to ignore it.

It is not that I have some magic crystal ball. Simple--we all knew it. The administration certainly knew the day would come when millions of people would receive cancellation notices of their insurance policy. Now my constituents clearly know it. I have heard from many Iowans who found out the hard way that the President made a bunch of pie-in-the- sky promises that he knew he couldn't keep, constituents such as this one from Perry, IA, saying:

My husband and I are farmers. For 9 years now we have

bought our own policy. To keep the costs affordable our plan

is a major medical plan with a very high deductible. We

recently received our letters that the plan was going away.

Effective January 1, 2014, it will be updated to comply

with the mandates of ObamaCare. To manage the risk of much

higher premiums, our insurance company is asking us to cancel

our current policy and sign on to a higher rate effective

December 1, 2013 or we could go to the government exchange.

We did not keep our current policy. We did not get to keep

our lower rates. I now have to pay for coverage that I do not

want or will never use. We are not low-income people that

might qualify for assistance. We are the small business owner

that is trying to live the American dream. I do not believe

in large government that wants to run my life.

Or a constituent living in Mason City, IA:

My wife and I are both 60 years old and I have been covered

by an excellent Wellmark Blue Cross/Blue Shield policy for

several years. It is not through my employer. We selected the

plan because it had the features we wanted and needed . . .

our choice. And because we are healthy we have a preferred

premium rate. Yesterday we got a call from our agent

explaining that since our plan is not grandfathered, it will

need to be replaced at the end of 2014. The current plan has

a $5,000 deductible and the premium is $511 per month. The

best option going forward for us from Wellmark would cost

$955 per month--a modest 87 percent increase--and have a

$10,000 deductible.

And because we have been diligent and responsible in saving

for our upcoming retirement, we do not qualify for any

taxpayer-funded subsidies.

These are just two of many letters, emails, and phone calls I have received from Iowans. Thousands have contacted me asking what can be done now that we clearly see that what the President sold the American people was a bag of Washington's best gift-wrapped hot air.

I ask the President, I ask my colleagues here in the Senate, to look at all we have been through as a country, all the grandiose talk about the importance of this statute, and what we ultimately have is an optional Medicaid expansion with a glorified high-risk pool and a government portal that makes the DMV look efficient.

Americans deserve better. They voted for better. But this administration will somehow trudge ahead; keep the doors open; thousands of people enrolled instead of millions. They just released a number this week for the 36 States using the malfunctioning Federal exchange: fewer than 27,000 people. Including people who have not actually committed to purchase the plans--those who have put it in their shopping cart--less than 27,000 people. That is about 19 people per day per State. So the administration will limp along with this pitiful signup process hoping to get people properly assigned to health plans.

If the assignment of individuals to plans fails miserably on January 1, the administration will dig in and sort it out. If the risk pools are a disaster, the administration will use extraregulatory--by any means necessary--tools to keep this program afloat. Because for all the talk of this

bill being--as we saw and heard the Vice President on TV--a big expletive deal, success is not defined in the desires of 2010 but in making sure ObamaCare exists in some form or fashion on January 20, 2017.

We saw more of this digging in and sorting out on this very day when the President spoke. Insurance companies sent 4 million cancellation notices to comply with the President's law. They did it to comply with the law. Let's be clear about it. In other words, these insurers read the law, and then do you know what they did. They did what every company ought to do: Follow the law. Unfortunately for them, the President did what he has been doing for 3 years: He has taken out his pencil and eraser and rewritten or delayed his law on the fly when it is not working.

So what does it now mean for insurers who were simply trying to follow the law as written, as you would expect them to follow the law? Let me tell you what one insurance company had to say:

This means that the insurance companies have 32 days to

reprogram their computer system for policies, rates, and

eligibility, send notices to policyholders via US Mail, send

a very complex letter that describes just what the

differences are between specific policies and ObamaCare

compliant plans, ask the consumer for their decision--and

give them a reasonable time to make that decision--and then

enter those decisions back into their system without creating

massive billing, claim payments, and provider eligibility

list mistakes.

That was a quote from the consultant who was commenting on what the President did today by delaying or by making sure you could keep your program.

Mr. President, I ask unanimous consent for 4 more minutes.

So the only thing the President has accomplished with his announcement today is that he is delaying his broken promise for another year. I have to wonder: What will it take for him to admit his law is not working and at least call for a full delay?

Remember how all these big health insurance companies back in 2009 got behind the President's program for nationalizing our health insurance program. They put up a lot of money to sell it. Their lobbyists lobbied for it. What they ought to do is tell the American people what a big mistake they made because they are getting stuck with it right now--as I just quoted from this consultant from an insurance company.

It is time for us to admit that ObamaCare has not achieved the correct or desired results of an attempt--in other words, the definition of success as I stated earlier in my remarks. It has not been a success by any measure, unless, of course, you lower your standard to the point that the mere act of keeping the doors open is a success. How sad is it that after all we have been through--and we have been through a lot. Maybe, just maybe, it is time to admit that the massive restructuring has failed. It may be that partisanship has failed. Perhaps it is time to sit down and consider commonsense, bipartisan steps we could take to lower costs and improve quality. Perhaps we could enact alternative reforms aimed at solving America's biggest health care problems, such as revising the Tax Code to help individuals who buy their own health insurance; allowing people to purchase health coverage across State lines and form risk pools in the individual markets; expanding tax-free health savings accounts; making health care price and quality information more transparent; cracking down on frivolous medical malpractice lawsuits; using high-risk pools to insure people with preexisting conditions; giving States more freedom to improve Medicaid, such as Rhode Island got a few years ago and which seems to be a success; and using provider competition, consumer choice to bring down costs in Medicare, throughout the health care delivery system. The American people need to know this failed program is not the only answer.

I yield the floor.

I thank the Senator from New York for yielding to me. I forgot to say that earlier.

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

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.

Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Madam President, would I be in order to speak about judges who are going to be voted on?

Madam President, I rise in support of the nominations of Debra M. Brown to be U.S. district judge for the Northern District of Mississippi and Gregory Howard Woods to be U.S. district judge for the Southern District of New York.

Before we vote on these nominations, I want to inform my fellow Senators and the American people once again on the excellent progress we have made on nominations and the fair treatment of President Obama's nominees. With these confirmations today, the Senate will have confirmed 38 lower court article III judicial nominees this year.

Despite what I frequently hear--that this President is being treated differently than President Bush--President Obama is clearly ahead of where President Bush was at a similar timeframe, meaning at this time in his second term. The 38 confirmations this year is more than 2\1/2\ times the number confirmed at a similar stage in President Bush's second term, when only 14 judicial nominees had been confirmed. In fact, for the entire fifth year of President Bush's term, only 21 lower court judges were confirmed. Again, in President Obama's fifth year we will have confirmed 38 nominees after today's votes.

In addition to the robust pace of activity on the floor, the committee has had an aggressive schedule of hearings and business meetings taking action on many more nominees. In total, the Senate will have confirmed 207 lower court article III judges. We have voted against three nominees. So 207 to 3 being defeated is a success rate for the President of 99 percent of his nominees. I think that is a pretty outstanding record not just for President Obama but for any President. So I reject the continuing rhetoric regarding how Republicans are obstructing President Obama's judicial nominees.

Again, I congratulate the nominees on their anticipated confirmations.

Debra M. Brown is nominated to be United States District Judge for the Northern District of Mississippi. She received her B.Arch. from Mississippi State University in 1987. She worked as an associate in architectural firms until starting law school in 1994. She received her J.D. from University of Mississippi School of Law in 1997. Upon graduation, she joined Phelps Dunbar LLP as an associate, focusing on commercial litigation primarily in the financial and insurance context representing commercial clients such as banks, mortgage companies, property and casualty insurers and commercial property managers. She became partner in 2004, and handled matters concerning construction- related litigation for construction sureties, general contractors and some subcontractors. In 2012, she moved to Wise Carter Child & Caraway, P.A. There, she continues to handle construction litigation, as well as representation of owners in construction matters, and representation of hospitals and medical providers in the context of employment law and medical malpractice. She has participated in 12 trials, two as sole counsel, and one as chief counsel.

The ABA has given Ms. Brown a rating of ``Unanimous Qualified''.

Gregory Howard Woods is nominated to be United States District Judge for the Southern District of New York. He received his B.A. from Williams College in 1991 and his J.D. from Yale Law School in 1995. After graduating from law school, Mr. Woods joined the Department of Justice as a trial attorney in the civil division. While at DOJ, his practice included investigating and litigating cases under the False Claims Act. In 1998, Mr. Woods joined Debevoise & Plimpton as an associate and was made an equity partner in 2004. At Debevoise & Plimpton his practice was focused almost exclusively on corporate transactional law. As a partner, he devoted his practice principally to finance and restructuring matters.

In August 2009 he was named Deputy General Counsel for the Department of Transportation. In 2012, after Senate confirmation, he was appointed by President Obama to be General Counsel of the Department of Energy.

The ABA has given Mr. Woods a rating of ``Majority Qualified, Minority Well Qualified''.

I yield the floor.

Mr. President, I rise in opposition to any motion to invoke cloture on nominees to the DC Circuit. I am somewhat disappointed that the Senate majority wants to turn to a very controversial nomination next rather than to continue on a path of cooperative confirmations or other important Senate business. It seems to me that scheduling such a controversial vote in the closing weeks of this session of Congress is designed simply to heat up the partisanship of judicial nominations.

My opposition is based on a number of factors.

First, an objective review of the court's workload makes clear that the workload simply does not justify adding additional judges, particularly when additional judgeships cost approximately $1 million-- $1 million--every year per judge.

Second, given that the caseload does not justify additional judges, you have to ask why the President would push so hard to fill these seats. It appears clear that the President wishes to add additional judges to this court in order to change judicial outcomes.

Third, the court is currently comprised of four active judges appointed by a Republican President and four active judges appointed by a Democratic President. There is no reason to upset the current makeup of the court, particularly when the reason for doing so appears to be ideologically driven.

I will start by providing my colleagues with a little bit of history regarding this particular seat on the DC Circuit.

It may come as a surprise to some, but this seat has been vacant for over 8 years. It became vacant in September 2005, when John Roberts was elevated to Chief Justice.

In June of 2006, President Bush nominated an eminently qualified individual for this seat, Peter Keisler. Mr. Keisler was widely lauded as a consensus bipartisan nominee. His distinguished record of public service included service as Acting Attorney General. Despite his broad bipartisan support and qualifications, Mr. Keisler waited 918 days for a committee vote. The vote never happened.

When he was nominated, Democrats objected to even holding a hearing for the nominee based upon concerns about the workload of the DC Circuit.

First, I would like to remind my colleagues that in 2006 Democrats argued that the DC Circuit caseload was too light to justify confirming any additional judges to the bench. Since that time, do you know what happened. The caseload has continued to decrease.

In terms of raw numbers, the DC Circuit has the lowest number of total appeals filed annually among all the circuit courts of appeals. In 2005 that number was 1,379. Last year it was 1,193--a decrease of 13.5 percent.

There are a lot of different ways to look at these numbers, but perhaps the best numbers to examine are the workload per active judge. The caseload has decreased so much since 2005 that even with two fewer active judges, the filing levels per active judge are practically the same. In 2005, with 10 active judges, the court had 138 appeals filed per active judge. Today, with only 8 active judges, it has 149. This makes the DC Circuit caseload levels the lowest in the Nation and less than half the national average.

It has been suggested that there are other circuits, namely the Eighth and the Tenth, that have lighter caseloads than the DC Circuit. That is inaccurate. The DC Circuit has fewer cases filed and fewer cases terminated than either the Eighth or the Tenth Circuit.

Cases filed and cases terminated measure the amount of appeals coming into the court and being resolved. Some of my colleagues have been arguing that the Eighth and the Tenth Circuits are similar to the DC Circuit based upon the comparison of pending cases. But cases pending does not measure how many cases are being added and removed from the docket.

When looking at how many cases are added or filed per active judge, the DC Circuit is the lowest with 149. It is lower than the Eighth Circuit's 280 and the Tenth Circuit's 217. When looking at the number of cases being terminated by each court, the DC Circuit is once again the lowest at 149. Again, the Eighth Circuit and the Tenth Circuit courts are much higher at 269 and 218.

Let me mention one other important point about pending appeals and the statistics my colleagues use. Several of my colleagues said on the floor yesterday that in 2005 there were only 121 pending appeals per active judge. That number seemed a little odd to me, so we looked into it a bit further, what the situation was in 2005. In order to arrive at that number, my colleagues appear to be taking the total appeals for 12 months ending June 30, 2005, and dividing them by 11 active judges.

As it turns out, there were only 9 active judges for almost that entire 12-month period. Janice Rogers Brown was sworn in on June 10, 2005, and Judge Griffith was sworn in June 29, 2005. As a result, during that 12-month period there were 10 active judges for a total of only 19 days. There were 11 active judges on the DC Circuit for a grand total of 1 day.

A few months later in 2005, the court was back down to nine after Judge Roberts was elevated to the Supreme Court and Judge Edwards took senior status.

This is how hard pressed the other side is to refute what everyone knows to be true: The caseload of the DC Circuit is lower now than it was back in 2005. In order to have a statistic that supports their judgment, the other side is claiming there were 11 active judges for that 12-month period, while that claim was true for only a total of 1 day.

The bottom line is this: The objective data clearly indicates the DC Circuit caseload is very low and that the court does not need additional active judges. That is especially true if you use the standard Senate Democrats established when they blocked Mr. Keisler.

In addition to the raw numbers, in order to get a firsthand account, several months ago I invited the current judges of that court to provide a candid assessment of their caseload. What they said should not surprise anyone who has looked at this closely. The judges themselves confirmed that the workload on the DC Circuit is exceptionally low, stating, ``The court does not need additional judges.'' And, ``If any more judges were added now, there wouldn't be enough work to go around.''

Those are powerful statements from the sitting judges in that circuit. Given these concerns, it is difficult to see why we would be moving forward with additional nominations, especially in a time when we are operating under budget constraints. Unfortunately, the justification for moving forward with additional DC Circuit nominees appears to be a desire and an intent to stack the court in order to determine the outcome of cases this court hears.

It is clear the President wants to fill this court with ideological allies for the purposes of reversing certain policy outcomes. This is not just my view. It has been overtly stated as an objective of this administration.

I would quote along this line a Washington Post article, ``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.''

We have a President who says: If Congress will not, I will. How do you stop that? The courts are the check on that. Even a member of the Democratic leadership admitted on the Senate floor that the reason they need to fill these seats was because, as he saw it, the DC Circuit was ``wreaking havoc with the country.''

This is perplexing, given the current makeup of the court. Currently, there are four Republican-appointed judges, and, with the most recent confirmation, there are now four Democratic-appointed judges. Apparently some on the other side want to make sure they get a favorable outcome of this court.

I have concerns regarding filling seats on this court which clearly has a very low caseload. I have greater concerns about this President's agenda to stack the court and to upset the current makeup simply in order to obtain favorable judicial outcomes because: If Congress will not, I will.

Given the overwhelming lack of a need to fill these seats based upon caseload and especially considering the cost to the taxpayers of over $1 million per judge per year, I cannot support this nomination and urge my colleagues to reject it as well.

I yield the floor.

Madam President, I want to illustrate why this seat doesn't need to be filled. These are the other circuits. The average of those other circuits is 383 caseloads. The DC Circuit has 149, so workload doesn't demand it.

Secondly, we are in a situation where this administration has said: ``If Congress won't, I will.'' He is going to do it by executive order. This is a court that can rule for or against the executive orders of this administration. We need to maintain checks and balances of the government.

Also, each one of these seats costs $1 million, and not just for 1 year, but every year for the rest of the life of those judges who are serving full time. I ask that my colleagues vote against this cloture motion.

What that doesn't take into consideration is that there are six senior status judges on this court. Chief Judge Garland told us that their workload is the equivalent of 3\1/4\ judges. So presently there are enough judges to go around and that would equal 11\1/4\ judges. There are 8 judges there now plus the 3\1/4\ that have senior status. There are plenty of reasons not to fill any more seats on this court.