In its first confirmation votes since changing U.S. Senate rules on the filibuster, a majority of senators voted today to confirm Patricia Millett as a judge on the D.C. Circuit Court of Appeals. Millett was one of three nominees for that court blocked by Senate Republicans this fall. Iowa’s Chuck Grassley, the ranking member of the Senate Judiciary Committee, has argued that the D.C. Circuit does not need more than eight judges and strongly objected to new limits on the filibuster. But he wasn’t able to stop Senate Democrats from passing a cloture motion on Millett’s nomination shortly before the Thanksgiving recess. A last-ditch effort by Senate Minority Leader Mitch McConnell to challenge the rule change failed this morning. Then Democrats and one Republican confirmed Judge Millett by 56 votes to 38.

Later today, the Senate is expected to confirm Representative Mel Watt as Federal Housing Finance Agency director. A Republican filibuster had derailed his nomination in October. Today the Senate approved by 57 votes to 40 a cloture motion “to set up eight hours of debate on his nomination.” A final confirmation vote is scheduled for this evening.

After the jump I’ve posted excerpts from a recent commentary by Iowa’s Senator Tom Harkin, a leading advocate of filibuster reform. I’ll add comments from Harkin and Grassley on today’s votes if they become available.

UPDATE: Senators confirmed Watt by 57 votes to 41, then moved on to reconsider a cloture motion on Cornelia Pillard’s nomination to the D.C. Circuit Court of Appeals. That motion passed by 56 votes to 42. Harkin and Grassley were on opposite sides on all of these votes. Grassley had led a successful filibuster of Pillard’s nomination in November.

SECOND UPDATE: Added Grassley’s floor statement on Millett’s nomination. He repeated his case against adding any more judges to the D.C. Circuit Court of Appeals.

Excerpt from commentary by Senator Tom Harkin, “The Framers Never Envisioned a 60 Vote Supermajority.”

Some have called it “tyranny.” Others, a “naked power grab.” In reality, the action taken by the Senate last week is consistent with both the Constitution and the Senate rules and two centuries of Senate tradition, and is fully aligned with the intent of the Founders as well.

Both Alexander Hamilton and James Madison indicated in the Federalist Papers a clear belief in majority rule, with Hamilton staying that “the fundamental maxim of republican government . . . requires that the sense of the majority should prevail.” Nonetheless, the Founders left the matter of House and Senate procedure undetermined in the Constitution, choosing instead to let Congress determine its own rules. Article I, section 5 of the Constitution, the Rules and Proceedings Clause, states that each House may determine the rules of its proceedings.”

That is exactly what the Senate did. In fact, the original Senate rules placed no time limit on debate, but also allowed any Senator to make a motion “for the previous question,” which permitted a simple majority to halt debate on the pending question and bring the matter to an immediate vote. This motion for the previous question was eliminated in 1806 at the suggestion of Vice President Aaron Burr, largely because it was deemed superfluous.

Even with the elimination of the motion to end debate, filibusters were hardly a defining part of the Senate. Across the entire 19th century, there were only 23 filibusters. And from 1917, when the Senate first adopted rules to end a filibuster, until 1969, there were fewer than 50, less than one per year.

Eliminating the filibuster on some nominations will not change the basic nature of the Senate as a legislative body. In fact, it is largely a restorative move, returning the Senate to its historical norms, when Senate giants like Henry Clay and Daniel Webster carried the day through the force of their ideas, rather than by manipulating rarely used Senate rules that allowed a small minority to block the will of the people.

Post Nuclear Option Grassley Floor Statement on Patricia Millett

Prepared Floor Statement of Senator Chuck Grassley of Iowa

Ranking Member, Senate Judiciary Committee

On the nomination of Patricia Millett

for the United States Court of Appeals for the D.C. Circuit

Monday, December 9, 2013

Mr. President,

Approximately 6 months ago, on June 4, 2013, the President simultaneously nominated three nominees for the D.C. Circuit.  Everyone knew then, just as they know now, that these judges aren’t needed.  The D.C. Circuit has the lowest caseload in the country by far, based on the standards the Democrats established just a few years ago when a Republican was in the White House.  

In fact, the caseload on the D.C. Circuit is so low that on April 10, 2013, approximately two months prior to these nominations, I introduced legislation – together with every Republican on the Judiciary Committee – to eliminate one seat on the D.C. Circuit and move two others to different circuits.  

That would be the sensible way to address this issue.  

Don’t spend $1 million in taxpayer dollars per year, per judge, on judgeships that aren’t needed.  Especially when the judges currently on the court say “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’re needed.  

That would be the sensible and good government approach.  But being sensible and good stewards of taxpayer dollars isn’t what the other side had in mind when they hatched this scheme.  Far from it.

No, the Administration’s motive here was clear from the beginning.  They knew they couldn’t pass their liberal agenda through a divided congress.  The American people had already rejected that agenda at the ballot box.  

But the Administration, of course, still runs the federal agencies.  And through the agencies, the Administration can ignore the will of the American people and continue to pursue its job-killing agenda.

It doesn’t matter that the American people don’t want their government to pass Cap and Trade fee increases, the Administration will simply force it upon them anyway through the Environmental Protection Agency.

It doesn’t matter that the employer mandate penalty under Obamacare doesn’t apply in the 34 states that haven’t created insurance exchanges, the Administration forced the employer mandate upon the American people anyway through an IRS regulation.

This has been the Administration’s plan.  It can’t get its liberal agenda through 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 big catch.  

Agency decisions are reviewed by the federal judiciary-our independent, third branch of government.  

So, for this scheme to work, the White House needed to stack the D.C. Circuit with judges who will rubberstamp its agenda.  

As a result, the Administration decided to ram their agenda through the agencies, and simultaneously stack the D.C. Circuit with judges they believe will rubberstamp that agenda.

That’s why, on the 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.”

Now, during the last few months, we’ve debated this issue.  And throughout the debate, the other side has tried their best to obscure the objective.  

They’ve manipulated caseload statistics in an effort to deny the obvious: the judges aren’t needed and won’t have enough work to do.

They’ve twisted the words of the Administrative Office of the U.S. Courts.  

They’ve claimed the Chief Justice of the United States believes these judgeships are needed, when of course that isn’t 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 couldn’t overcome simple and basic facts everyone knew to be true: under the standard established by the Democrats under the Bush Administration, these judgeships aren’t needed and shouldn’t be confirmed.  

As a result, when the United States Senate considered these nominations, it denied consent.    

The other side lost the debate.

Under normal circumstances, that would’ve been the end of the matter.  But not this time.

This time, there’s a Democrat in the White House and a Republican minority in the Senate.  So the caseload statistics that carried the day in 2006 no longer matter to today’s 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.  

And of course, the biggest difference is that this time, what’s at stake is a radical agenda and the other side’s effort to remove any meaningful check on that agenda.

In short, it’s Obamacare.  It’s climate change regulation.  It’s Presidential rule by fiat.

The other side decided they were no longer willing to play by the rules they established and pioneered.  

They lost the debate, so 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 too important.

But as I said, the end-game for this scheme has been clear all along.  

So I wasn’t surprised to read the media accounts confirming the reasons Democrats broke the Senate rules in order to get these nominees confirmed.  

For instance, on November 23rd, The Hill newspaper ran an article with this headline:

“Filibuster change clears path for Obama climate regs crackdown.”  

The Hill 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 regulations 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.”

And the Washington Post wrote this:

“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 issue 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 carbon 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.”

And here is how one liberal environmental media outlet described the change:

“When 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.”

And of course, according to media reports, it was these same liberal interest groups that pressured the Majority Leader to break 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 about why the other side took such a drastic step, there shouldn’t be 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 tossed aside, willy-nilly, some 225 years of Senate history and tradition.  

And what’s 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.

So, this is a power grab, of course.  But it’s much more than that.  

It’s the erosion of the separation of powers.  

It’s a White House that is so committed to a policy agenda that the American people don’t want, that it co-opted the Majority in the United States Senate in its scheme to remove a meaningful judicial check on the executive branch of government and its 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 they don’t want it.  

And this is about a last ditch effort to salvage Obamacare  — and regulations like the IRS rule imposing the employer mandate penalty in 34 states in direct conflict with the statute — by installing judges the White House believes will rubberstamp it.  

I urge my colleagues stand up to this White House.  Stand up to the radical liberal interest groups.  

Don’t cast a vote for Cap and Trade fee increases.  And don’t cast another vote for Obamacare.

Instead, vote against this nomination.

I yield the floor.