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Mike L.
Republican UT

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  • Wilkins Nomination

    by Senator Mike Lee

    Posted on 2014-01-13

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    LEE. Mr. President, I thank my colleagues from Rhode Island and Iowa for their cooperation in establishing the speaking order this evening. I would like to speak for a moment about the vote we just cast. We just confirmed Judge Wilkins to the U.S. Court of Appeals for the DC Circuit. I voted against this judge. In doing that, I joined my Republican colleagues for one simple reason. Several years ago, when President George W. Bush was in the White House, he nominated an eminently qualified lawyer named Peter Keisler who had bipartisan support.

    He was not a partisan hack; he was a true craftsman in the law. He was someone whom no one had any ideological opposition to, but he was blocked by the Senate Democrats at that time for the simple fact, based on the simple reason, that according to the Senate Democrats the DC Circuit's caseload was not sufficiently robust to justify the filling of this position.

    Since that time, not very many things have changed. Since that time, if anything, the DC Circuit's caseload per judge has remained about the same or some would argue has gone down a little, depending on which metric you use. One change is that we have now a Democratic President in the White House instead of a Republican President in the White House. Suddenly my friends across the aisle have forgotten about the caseload-based arguments they used a few years ago to keep Peter Keisler off the U.S. Court of Appeals for the DC Circuit.

    We have now confirmed, just in the last few weeks, three additional judges to the U.S. Court of Appeals for the DC Circuit. This has happened against substantial Republican opposition that has been based on the very analysis I have just outlined. This has been facilitated by virtue of the fact that my distinguished colleague, the senior Senator from Nevada, joined by his Democratic colleagues, chose a few weeks ago to exercise what has been referred to as the nuclear option. They broke the rules of the Senate in order to change the rules of the Senate, and they did that so they could put more people on the bench, so they could put more people into top-level positions in this administration while more or less squelching the view of the minority party within the Senate.

    This is unfortunate. The most unfortunate aspect of it is that it is part of a broader strategy that is not limited to the DC Circuit; in fact, it is not even limited to the Senate's confirmation process with respect to these judges or other judges. It extends much more broadly than that. It is part of the same effort that convinced the President of the United States, on January 4, 2012, to make four appointments, three to the National Labor Relations Board and one to the Consumer Financial Protection Bureau, pursuant to the President's recess appointment power.

    Citing Article II, Section 2, Clause 3 of the Constitution, the President claimed he had the power to appoint these individuals without going through the Senate advice-and-consent process because, as he asserted, the Senate was in recess. There was only one problem with this. The Senate was not in fact in recess. Under Article I, Section 5, Clause 2 of the Constitution, each Chamber of Congress, including the Senate, has the right to determine its own rules, its own procedures. According to the Senate's own rules and according to the Senate's own Journal, the Senate was in fact in session as of January 4, 2012, the moment these supposed recess appointments were made. This was a problem.

    [[Page S285]] Fortunately, the U.S. Court of Appeals for the DC Circuit--prior, I would add, to the confirmation of the three recent judges we have confirmed just in the last few weeks--concluded that this was a lawless act; that it was unconstitutional; that the President did not have the right to deem the Senate in recess when, according to the Senate's own rules, the Senate was in session. The Senate was not in recess.

    That case today was reviewed by the Supreme Court of the United States. I had the privilege of sitting in the courtroom just across the street and watching those proceedings. I was pleased to see the checks and balances within our system were functioning--at least to the extent that we have our court system reviewing this act by the President of the United States. I think it is fortunate we have this kind of judicial system that can review it. Based on what I saw today and the quality of the arguments presented to the Court, I am hopeful the Court will reach the same conclusion. I am hopeful the Supreme Court will affirm the judgment entered by the DC Circuit.

    In a broader sense it is sad, it is disappointing that it even had to get that far, and it is disappointing that the President of the United States was willing to engage in such a lawless act; that the President of the United States was willing openly to flout the plain text, history, tradition of the U.S. Constitution.

    Ours is not a government of one. It was with good reason that the Founding Fathers split up the power, including the power to appoint people to high Federal office such that the President could nominate but the Senate got to confirm. By the President's approach, pursuant to which the President of the United States could himself deem the Senate in recess if he did not think the Senate was doing enough when it went into brief sessions, the President himself could substantially circumvent the advice-and-consent role the Founding Fathers and the Constitution wisely placed in the hands of the Senate.

    The reason I said it is unfortunate it had to get to that level, it is unfortunate, first of all, the President felt it was OK, it was acceptable do this. He, of course, took an oath, not once but twice, to uphold, protect, and defend the Constitution of the United States.

    It is unfortunate, secondarily, that there was not more of an outcry from this body. Sure, there were a lot Republicans who joined me in calling this action lawless, because it was. It was sad that none of our colleagues from the other side of the aisle--at least not publicly--were willing to acknowledge the lawlessness of this act. Some acknowledged to me in private that it was problematic. Some acknowledged to me that there were some implications behind this that threatened the Senate as an institution. But I think we need to be more open, more faithful, more forceful, and less partisan about the way we defend the Constitution of the United States.

    To me it would not matter--if this were a Republican President I would be arguing with equal strength on this issue. In the future when we have a Republican President, if any Republican President is lawless enough to try this, I will oppose it with everything within me. We ourselves take an oath to uphold the Constitution of the United States. I think that involves doing more than simply leaving it to the courts to iron out the details.

    I yield the floor.

    The PRESIDING OFFICER. The Senator from Iowa.


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