Grassley accuses Democrats of diversion as Republicans filibuster another nominee (updated)

Republicans in the U.S. Senate again blocked a vote on one of President Barack Obama's judicial nominees yesterday. Robert Wilkins has served on the U.S. District Court for Washington, DC since his unanimous confirmation in 2010. But a cloture motion on Wilkins' nomination to the U.S. Court of Appeals for the District of Columbia Circuit failed with just 53 votes out of the 60 needed to end debate. Iowa's Senator Chuck Grassley is the ranking Republican on the Senate Judiciary Committee and has led recent filibusters on two other nominees to the D.C. Circuit, claiming the court's workload does not justify additional judges. In a floor statement that I've posted after the jump, Grassley made the same assertion but added a new twist:

There is no crisis on the D.C. Circuit, because they don't have enough work to do as it is. [...]

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

I've also posted statements below from the National Women's Law Center and the Alliance for Justice, which again called for Senate rules reform. Nothing in the U.S. Constitution says that presidential nominees need a super-majority to be confirmed by the Senate.

UPDATE: I did not realize that Judge Wilkins filed the lawsuit against the Maryland State Police "that helped popularize the term 'driving while black'" during the 1990s.

I've added some clips at the end of this post on the growing momentum for changing Senate rules to end fillibusters of judicial nominees.

For Immediate Release

November 18, 2013

Using the D.C. Circuit to Divert Attention from the Real Crisis of Health Care Reform

Prepared Floor Statement of Senator Chuck Grassley of Iowa

Ranking Member, Senate Judiciary Committee

On the Motion to invoke Cloture on the nomination of

Robert Wilkins, to be U.S. Circuit Judge for the District of Columbia Circuit

Monday, November 18, 2013

Mr. President,

I'm speaking in opposition to the motion to invoke cloture on the nominee for the D.C. Circuit, Judge Robert Wilkins.  I have some concerns with Judge Wilkins' record, but I'm not going to focus on those concerns today.

I've said it before and I'll say it again: by the standard the Democrats established in 2006, we shouldn't confirm any more judges to the D.C. Circuit, especially when those additional judges cost approximately $1 million per year, per judge.

The fact of the matter is that the D.C. Circuit is underworked.

The statistics make it abundantly clear, but I'm not going to go through all of them.  I will mention a couple brief points regarding the caseload, however.

The D.C. Circuit ranks last, for instance, in both the number of appeals filed and appeals terminated.  These are the cases coming into the court, and going out.

Not only does the D.C. Circuit rank last.  But it isn't even close.

To give you a frame of reference, compare the D.C. Circuit to the 11th Circuit, which has the highest caseload.  The 11th has over 5 times as many appeals filed as the D.C. Circuit.

And the same is true for the appeals terminated.

Again, it isn't even close.

The 11th Circuit has over 5 times as many appeals terminated as the D.C. Circuit.

The bottom line is that the D.C. Circuit doesn't have enough work as it is, let alone if we were to add even more judges.

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

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

But as I've said, this argument doesn't stand up under scrutiny.

My colleagues argue the D.C. Circuit's docket is complex because "43 percent" of its docket is made up of "administrative appeals."

But of course, there is a reason they cite a percentage, rather than a number.  And that is because it is a high percentage, of a very small number.

When you look at the actual number of these so-called "complex" cases per judge, the Second Circuit has almost twice as many as the D.C. Circuit.

In 2012, there were 512 "administrative appeals" filed in the D.C. Circuit.

In the Second Circuit, there were 1,493.

Stated differently, in the D.C. Circuit, there were only 64 administrative appeals per active judge.  The Second Circuit has nearly twice as many with 115.

Again, that's 64 administrative appeals per active judge in the D.C. Circuit, compared to almost twice as many with the Second Circuit, with 115.

So, this entire argument about "complexity" is nonsense.

Now, to hear the other side tell it, it is an outrage that we would hold them to the same standard they established in 2006 when they blocked Peter Keisler's nomination to the D.C. Circuit based on caseload.  

Since that time, by the standard 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 active 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 the Democrats today, but that is not a reason to abandon the standards they established.

And remember, the other side established the Keisler standard AFTER the so-called "gang of 14" agreement.  So, 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.

So, as I've said, the other side has run out of legitimate arguments in support of these nominations.

That is why they are grasping at straws.

And when the other side grasps at straws, they get desperate.  When the other side gets desperate, they turn to their last line of defense: accuse the 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 is offensive, and patently absurd.

It is so absurd, in fact, that even the L.A. 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 of the matter is that Republicans have supported over 80 women nominated to the bench by President Obama, as well as a host of other nominees of diverse backgrounds.

Those are the facts.

It's unfortunate, but sadly predictable.

These allegations of gender bias are unfortunate because they represent cheap attacks the other side knows are untrue.

But it's also unfortunate because this entire exercise is designed to create the appearance of a crisis where there is none.

There is no crisis on the D.C. Circuit, because they don't have enough work to do as it is.

But there is a crisis occurring right now all across this country as a result of Obamacare.

Millions of Americans are losing their healthcare insurance, even though the President promised over and over again, "if you like your healthcare, you can keep it."

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

Here is how the Roll Call newspaper described the strategy:  "Senate Democrats . . . are readying their next assertive moves on three other issues important to their base: Abortion rights; Minimum wage; [and the] Federal judiciary.  The goal is to divert as much attention as possible away from the problem-plagued Obamacare rollout."

So, let me get this straight.

Right now, a crisis is unfolding all across this country as millions of Americans are losing their health insurance because of Obamacare.

Yet, the Democrats' strategy is to conceal the Obamacare crisis by using the D.C. Circuit as a smokescreen.

That is breathtaking, even by Washington, D.C. 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 on the D.C. Circuit, even though the current judges say things like: "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've already explained that these allegations are offensive, and patently absurd.

But since the other side's strategy is to conceal the Obamacare train wreck with a D.C. Circuit smokescreen, and on top of that, is willing to go so far as to accuse our side of gender bias, then I'm going to take the opportunity to share some of the frustrations being experienced by constituents of mine - women in Iowa - as a result of Obamacare.

A woman from Vinton, Iowa, writes:

"After 28 days of complete frustration, I got to look at 30 plans on the Iowa health care exchange at 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 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 canceled 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???"

A woman in Sioux City, Iowa, writes:

"My company just had a meeting to 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 [stinks]."

A mom in Dayton, Iowa:

"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 our 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."

And finally, a woman in Melbourne, Iowa, 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."

Mr. President, these are real stories, from real women, facing a real crisis, in Iowa.

And this isn't happening only in Iowa.  Far from it.  This is happening to millions of Americans, all across this country.

But 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 D.C. Circuit as a smokescreen.

So, to sum up:

-Even though 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 on the Democrats' standard from 2006;

-And, even though filling these seats would waste $3 million per year in taxpayer money that we don't have;

The other side is bent on manufacturing a crisis for cynical political reasons.

I'd urge my colleagues on the other side to come to their senses.  Let's 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.

Statement from National Women's Law Center:

Senate Fails to Confirm Judicial Nominee Robert Wilkins to D.C. Circuit Court

November 18, 2013

(Washington, D.C.) Earlier today, a minority of the Senate blocked a final confirmation vote on the nomination of Judge Robert Wilkins to the U.S. Court of Appeals for the District of Columbia Circuit.

The following statement is from NWLC Co-President Marcia D. Greenberger:

"Today's action sends a clear signal that a determined minority of the Senate is willing to put justice at risk. By filibustering three judicial nominees in three weeks, politics are being placed above the needs of this court and the women and men who come before it.

"Like Patricia Millett and Cornelia Pillard - whose nominations were similarly filibustered - Judge Robert Wilkins would bring considerable legal talents to the bench and also increase its diversity. Judge Wilkins currently sits on the U.S. District Court for the District of Columbia, after being unanimously confirmed to that position in 2010.

"The D.C. Circuit Court is considered the second-most important court in the nation, reviewing complex cases that influence women's rights, environmental protections, federal agencies and worker rights on a national level. With three vacancies on its eleven-seat bench, this court - and all Americans - would benefit from the addition of the exceptionally qualified Judge Wilkins."

Statement from the Alliance for Justice:

AFJ on Wilkins Vote: There is no choice; the rules must be changed

WASHINGTON, D.C., November 18, 2013 - Alliance for Justice President Nan Aron issued the following statement in response to the cloture vote on the nomination of Robert Wilkins to serve on the United States Court of Appeals for the District of Columbia Circuit:

For the third time in as many weeks, the extremist minority in the Senate has filibustered a supremely-qualified nominee for the United States Court of Appeals for the District of Columbia Circuit.

By blocking Patricia Millett, Nina Pillard and now, Robert Wilkins, this minority has shown contempt for the Senate, contempt for democracy and contempt for the American people.  They have abused and exploited the rules of the Senate for nakedly political purposes, leaving senators of conscience no choice but to change the rules in order to restore faith in the democratic process and end the crisis in our courts.

Read more about the D.C. Circuit

Alliance for Justice is a national association of over 100 organizations, representing a broad array of groups committed to progressive values and the creation of an equitable, just, and free society. Through our justice programs, we lead the progressive community in the fight for a fair judiciary, and through our advocacy programs, we help nonprofits and foundations to realize their advocacy potential.  Learn more about Alliance for Justice at

The Hill's Alexander Bolton quoted Senate Majority Leader Harry Reid on November 19:

"I'm at the point where we need to do something to allow government to function," Reid said when asked if he would consider using the so-called nuclear option, a controversial procedural tactic for changing Senate rules. "I'm considering looking at the rules."

The seldom-used tactic would allow Democrats to change the Senate's rules with a simple-majority vote.

"The founding fathers never had in place in the Constitution about filibusters or extended debate," he told reporters. "This country operated fairly well for 140 years without filibuster protection."

Reid said he will insist that Republicans allow up-or-down votes on all three of Obama's nominees to the D.C. Circuit Court of Appeals: Patricia Millet, Cornelia Pillard and Robert Wilkins.

"I insist on all three of these qualified - look at their educational background, look at their experience in the law, look at their moral integrity," he said. "Why should we agree to something less than the law of the country?"

The New York Times reported on November 18,

Republicans are on the verge of exhausting the last bit of tolerance Democrats have shown for such regular use of the filibuster on nominations. Senator Patrick J. Leahy of Vermont, the Senate's longest-serving current member, who has fought to safeguard the institution's traditions, said Monday that momentum was building toward a rules change - a move so controversial that it is referred to as the nuclear option.

"I've never seen anything like this," Mr. Leahy said.

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