A picture of Senator Lindsey Graham
Lindsey G.
Republican SC

About Sen. Lindsey
  • Executive Session

    by Senator Lindsey Graham

    Posted on 2013-12-11

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    GRAHAM. Mr. President, I rise today to address the nomination of Cornelia Pillard for the DC Circuit.



    My colleagues, I have enjoyed my time in the Senate very much, although we live in a very difficult time. Politically, there are a lot of influences on individual Senators and parties and the body as a whole, so these are very difficult times. I can only imagine writing the Constitution today. I always thought that would be a good ``Saturday Night Live'' skit: Go back to Philadelphia hall and have all the satellite trucks parked outside and the bloggers and talk radio, moveon.org--fill in the blank--all putting pressure on our Founding Fathers not to do this or that. We live in different times.

    It is absolutely good that people have a voice and influence and create organizations to advocate their cause. There seems to be an organization for almost every aspect of the economy. So lobbying the government, having a say about legislation, trying to push your representatives to do something you think is good for the country is very much a part of democracy, but eventually we have to govern.

    Democracy is a journey, sort of like when you are on vacation or you are driving to a place with your kids and they always ask: Are we there yet? But democracy is not an end state, it is a process. Democracy is really about protecting losers, not so much winners. Winners tend to do well in any system. Democracy protects the loser by having a rule of law, a process that says: If you lose the election or you are in the minority in a body, there will be rules there to give you a voice.

    One of the problems in the Mideast and throughout the world is that people are afraid to lose. In the Mideast it is a winner-take-all environment. The reason there are so many militias is that people don't trust the police or the government to be fair to their sect or their tribe, so they arm themselves, believing that if they don't take care of themselves, nobody else will. But that just leads to an endless state of conflict.

    So democracy is really a process, and it is designed to ensure that losers in a democratic process will still have basic rights. You can lose the election and not get fired. It is illegal to fire somebody because they are in the opposite party, unless it is a political job where one expects that to happen. You don't lose your right to speak up because you lost the election.

    When you find yourself in the minority in politics, it is important that you have a say. It is also important that the majority has the ability, having won the election, to do certain things--to run the place, for lack of better words.

    The Senate is an unusual body in traditional democracy. Parliamentarian systems are different from what we have set up. You have two houses in most places, such as the House of Lords. I don't know what power it has, but it is not too great. The parliamentary system is where you have to form coalitions. At the end of the day it is a completely different setup than we have here, where the party in charge, if they can form a big enough coalition, can basically just run the place.

    The House is a winner-take-all body. If you are in the majority in the House, you can decide what bills to bring to the floor, what amendments will be allowed on those bills, and how long to debate those bills. You have an almost absolute dictatorial ability to run the House. You determine everything. The minority has some say but not a whole lot. The House is sort of gang warfare. I have been there and love the institution. You will find that majorities will be fighting among themselves a lot in the House because that is where the action is in the House.

    I have been in the House, and I have been in the Senate. I loved being in the House, and I understood the way the rules worked--that if you were in the minority, what came to the floor was determined by the majority, what amendments were in order was determined by the majority, and that is just the way it was.

    When I was in the House, we would pass one measure after another that would go to the Senate and never be heard from again, and that was frustrating. But the older you get, you sort of realize maybe some of the things you wanted were not in the best interest of the country as a whole. And the fact that you knew that if it went to the Senate there would be a filtering process, unlike in the House, became somewhat reassuring over time.

    House majorities are more partisan, generally speaking. They are influenced by 2-year election cycles. It is a more passionate body because you are always up for election and the winner takes all. And when you win in the House, the people who got you there expect you to do things consistent with your party's agenda. Nothing wrong with that.

    In the Senate there has been a conscious effort to put some brakes on that kind of governing. When you send a bill to the Senate, you still, to this day, have to get 60 votes to bring the legislation to the floor and to get cloture, and the minority has the ability to say not only whether they want the bill to come to the floor, with a certain amount of amendments, but then they can negotiate with our friends in the majority to get the amendments we want and to allow the legislation to come forward. There are probably a lot of times when Republicans in the House voted understanding that this idea wouldn't make it through the Senate and that was probably OK.

    Here is what I feel. A lot of my colleagues have talked about Ms. Pillard, the nominee, being a radical judge and [[Page S8624]] being out of the mainstream. I don't want to get into that. All I can say is that my view of a Presidential appointment is for the Senate to provide advice and consent--constitutionally required--but to recognize that the President won the election and the Senate has the advise and consent powers, not the House.

    I have found myself in all kinds of judge fights since I have been here. I was a lawyer before I was a politician. I love the law. What I love about the law is that, in theory, it is a place where the poorest guy, the most unpopular person can still get a fair shake. Of course, that wouldn't happen in a political environment. It is a place where the richest guy or gal in town doesn't have to pay because they can afford to, only because they have a legal responsibility to. I love the idea of an independent judiciary, a jury of one's peers, protecting people's interests in a way politics never could.

    I would argue that the strength of the rule of law in this country has been our great saving grace. Elections happen all over the Mideast. Saddam Hussein got 90-some percent. We haven't been able to get there yet. I would argue that electing Saddam Hussein was a joke, that it is the institutions of government that really do provide freedom for people. An independent judiciary has been a Godsend to our country. It is not perfect by any means, but it was the courts that basically broke the stronghold of segregation because politically it would have taken far longer to get there.

    At the end of the day, in Bush v. Gore, maybe one of Vice President Gore's finest moments contributing to democracy was his acceptance of the ruling of the court. He fought like crazy, he lost a national election by a few hundred votes, all of his supporters are telling him they did this here and they did that there, and the next thing you know the Supreme Court rules 5 to 4, and he graciously accepted the decision.

    What has happened here is that the rules of the Senate have been changed in a very dramatic way for the first time really in 200-some years. Our colleagues on the other side decided that we would no longer require 60 votes to get a nomination to the floor or to approve a judge. Now it is majority rule--majority rule on judicial nominations, except Supreme Court and executive appointments.

    A lot of average people might say: Well, they won the election; why isn't 51 enough? My response is this: I think we all understand the benefits of being able to slow things down that come out of the House. And having to pick up some votes from the other side to get the 60 to pass legislation has probably saved the country a lot of heartache in terms of emotional legislation coming through the House to the Senate that would never make it into law. A lot of things I wanted have been killed in the Senate, and a lot of things I hoped never would see the light of day have died in the Senate. So it kind of works out.

    When it comes to judges, I have tried very hard to make sure that Republican and Democratic Presidents are treated fairly. I do not believe it is my job as a Senator from South Carolina to vote or block an appointment because I wouldn't have chosen that judge.

    I remember during the Bush Presidency there was a wholesale filibuster of Bush's judicial nominations, and we were thinking about doing the nuclear option. But seven Democrats and seven Republicans said: Wait a minute. Unless there is an extraordinary circumstance, we shouldn't filibuster judges. An extraordinary circumstance really is about qualifications or something unusual.

    I can say to my Democratic colleagues that we have denied two judicial picks by not allowing cloture. If advise and consent means anything, it means that, on occasion, you can say no. So there have been only two.

    As to the DC Circuit Court, this dispute about how many judges there should be on the DC Circuit Court has been going on at least for a decade--ever since I have been here. The Bush administration wanted to add judges to the DC Circuit because that is the circuit all appeals go to when government regulation is challenged by somebody in the private sector, an individual or a business. If you want to sue about ObamaCare regulations or the detention policy or the NSA's programs, it goes to the DC Circuit. So every President, quite frankly, would like to have an advantage there because it protects their administration's policies.

    I guess what I would say is that changing the rules because we have said no to two picks--outside of the DC Circuit--was, quite frankly, irresponsible, and it is going to change the Senate forever.

    As to the DC Circuit, no one can say this debate hasn't been going on before we all got here. Senator Grassley has been the most consistent guy in the world about the DC Circuit, even when Republicans were in charge. There are more needs out there. These judges are fine people. They could be put in the other spots where the need is greater.

    But we are where we are. So our colleagues decided, after two--I don't know how many have been approved, but two have been denied-- enough is enough on the judge side, along with the attempt to grow the court in the DC Circuit.

    We have had disputes about executive nominations. I remember Ambassador Bolton. And Mel Watt--really, honest to God, I like Mel. He is a great guy. I just don't think he is the right choice for Fannie Mae and Freddie Mac. And to my colleagues here, you are all wonderful people, but there is not one person in the Senate whom I would pick for that job because it has a very technical requirement to it.

    So here we are.

    Very quickly--and then I will turn it over to Senator Grassley--what does this matter in the long term? I think the first casualty of this rules change is going to be the judiciary itself, and here is what I mean by that. Now that we don't have to cross the aisle to pick up a few votes to get to 60 when there is a disagreement--and these are very rare; we don't filibuster everybody; they are fairly rare--we are going to have more ideological-driven picks on judicial nominations because once the filtering device of having to at least talk to the other side is removed, once that no longer exists, the pressure in the conference to pick the most ideologically pure, hardnosed, fire-breathing liberal or conservative is going to be immense.

    So what my colleagues have done is they have changed the face of the judiciary probably forever. And shame on you. I think that is going to be your legacy that will stand out long after all of us have gone because I don't see how you go back and put this genie in the bottle.

    I think we are going to find that judicial selections in the future are going to be those whom the most rabid partisans are going to pick-- the most faithful to the cause, not the most faithful to the law.

    I don't know what it is like on the Democratic side, but I can tell you what it will be like on the Republican side.

    There are a lot of people out there who have a list of judges they want to see on the court--yesterday. Some of these people are going to be tough for you to swallow, and I am sure you will do the same to us.

    What you are doing is making the majority self-regulated. There is no longer the excuse, for lack of a better word: I can't ``push'' this person through because I have to get somebody in. Those who want to make sure they are picking the best person who is not an ideologue, you are going to have a hard time of it.

    I think the judiciary is the biggest casualty over time, only equal to the Senate itself. It will not be long--and I don't know how long it will be--before the rules change for Supreme Court picks, because there will be replacements of several members of the Supreme Court in the next decade. That is just the way the life is. There will be opposition from the party out of power. There will be frustration. Somebody will be blocked that makes the party in power mad and they are going to change the rules. That is just going to happen. We are now about outcomes. We are not about process.

    The Senate is slowly but surely becoming the House, where winner takes all and ends justify the means: Anything you can do over there, we will do over here. That is just the way it is going to be.

    It will not be much longer until we have a Senate and a House and a White [[Page S8625]] House in one party--as happens every now and then--and there is going to be a centerpiece of legislation that has been the Holy Grail to that party that is an absolute nightmare to the other side; it is going to pass the House on a party-line vote, it is going to come to the Senate, and somebody is going to get frustrated and say: I have 51-plus votes. I may have 57 votes. I don't have 60. And they are going to change the rule on legislation because the pressure to do it, now that we have gone down this road, is going to be immense. I am by no means perfect. But when this happened on our watch, I tried to find a way to avoid it. But we are where we are.

    Finally, about ObamaCare. Let me tell you from a Member of Congress point of view something you should consider. All of us are Federal employees and we get a subsidy for our health care premiums similar to every other fellow employee. It is not a unique deal to Congress. If you are a member of the Federal Government, you get up to 72 percent of your premium subsidized. Other employers do that, but it is a darned good deal that is available to all Federal employees.

    Again, I compliment Senator Grassley. He said: If we are going to have ObamaCare, we ought to be in it. We, the Congress, and our staffs. Under the law that was passed--I think Senator Grassley was the originator of this idea--Members of Congress and our staffs have to go into the exchanges. But we have the ability to go into the District of Columbia exchange, and the law is written such--and every Member of Congress who takes this subsidy is entitled to do it. I don't blame them one bit. You have to go into the exchange, and your premiums are going to go up, but the subsidy will continue.

    Senator Vitter believes, and so do I, that because we are leaders we should take the road less traveled and experience more pain than those who follow. So I have been of the opinion that if you are going to change this law, the Congress should not only go into the exchange, we shouldn't get a subsidy any longer. Why? Because most Americans are going to lose their employer-sponsored health care as it exists today-- maybe not in total but their premiums are going to go up dramatically because employers cannot afford to pay the increased premium under the old system. So they will either lose employer-sponsored health care and become an individual or they are going to have to pay more because their employer is in a bind and they can't afford the subsidies that once existed--because premiums for employers, similar to individuals, are going to go through the roof.

    I wish to give an example about what I have chosen to do. I have chosen not to go into the DC exchange but to enroll in South Carolina because that is where I live. Enrolling in the South Carolina exchange, I will not get a subsidy. That was my choice. I accept that choice. Why am I doing this? To try to lead by example what I think is coming to a lot of Americans in some form or another.

    So here is what happens with me: Under the old system, I was paying $186 a month. If I went into the DC exchange, my premiums would go up but not a huge amount. But now that I am enrolling as a 58-year-old short White guy in South Carolina, my premiums are based on the county I live in and my age, with no subsidy, because I make too much money to get a subsidy. People at my income level don't deserve a subsidy because it would bankrupt the Nation more than we are already doing if we did that.

    Under ObamaCare in South Carolina, I chose the Bronze plan. Why? It is the cheapest one I could find. I am not independently wealthy. I make a very good living as a Member of the Senate, almost $180,000, but at the end of the day here is what is coming my way: My premium goes up to $572 a month from $186. That is $400 a month, almost, a 200-percent increase.

    Under my old health plan if I went to the doctor, I paid a $20 copay. Under the new Bronze plan, I pay $50.

    Under the old plan if I saw a specialist, it was $30. Under the new plan, it is $100.

    My old deductible was $350 a year. My new deductible is $6,350--a $6,000 increase.

    My old plan had a $5,000 out-of-pocket limit. The new one is $6,350.

    You also get rated not just on your age but where you live. I am paying $70 a month more than a county that is 40 miles away.

    The bottom line is that what I am experiencing a lot of other people are going to experience. I am paying a lot more for a lot less. How can that be? When you are told that you get more and you pay less and a politician tells you that, you ought to be very leery. That hasn't worked out in my life: You are going to get a lot more, but you are going to pay less.

    The reason these premiums are going up is that all the uninsured--and I want to provide coverage to the uninsured as much as anybody else-- get insurance coverage with a subsidy. Who is paying those subsidies? The rest of us.

    So we are going to see next year employers having to back out of employer-sponsored health care either in total or in part. What we are going to find throughout this country is that people who had employer- sponsored health care, just like the individual markets, their premiums are going to skyrocket--maybe not as much as mine, maybe not 200 percent. The deductibles are going to go up--maybe not as much as mine at $6,000, but everybody in the country doesn't make $176,000.

    So every Member of Congress should look at what would your life be like if you didn't have a Federal Government subsidy, if you didn't enroll in the DC exchange, if you went back home and had to pick a plan similar to everybody else in your State? You ought to sit down and look at what your individual life would be like. If you just look, you will be shocked. I sure was.

    This is not about me, even though I am giving you an example about myself. It is about an idea called ObamaCare that is going to destroy health care as we know it in the name of saving it and making it better.

    I think we all agree we need to reform health care. But I think most Americans believe their old health care system was working pretty good for them, but it could always be made better.

    So I would ask every Member of Congress, whether you go into your State exchange, if one exists, or not, do the math. You are going to be shocked at how it would affect you. Let me tell you, it is going to affect people you represent in similar fashion.

    So what do you do? Why don't we just try to sit down and start over and see if we can do better before it is too late? I yield the floor.

    The PRESIDING OFFICER. The Senator from Vermont.

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