Washington, D.C. – U.S. Senate Republican Leader Mitch McConnell made the following remarks on the Senate floor regarding the D.C. Circuit Court:

“I will vote against cloture on the Millett nomination, and I’d like to discuss why.

“Ms. Millett is no doubt a fine person.  This is nothing personal.

“Peter Keisler, of course, is a fine person, too.  But our Democratic colleagues pocket-filibustered his nomination to the D.C. Circuit for two years on the ground that the court’s workload did not warrant his confirmation. 

“They did so despite his considerable skill as an attorney, and his personal qualities.  His nomination languished until the end of the Bush Administration; he waited almost 1,000 days for a vote that never came.

“The criteria our Democratic friends cited to block Mr. Keisler’s nomination then, clearly show that the court is even less busy now. 

“For example:

“The seat to which Ms. Millett is nominated is not a judicial emergency.  Far from it.

“The number of appeals at the court is down almost 20%.

“And the written decisions, per active judge, are down almost 30%.

“In addition to these metrics, the D.C. Circuit has provided another.  The Chief Judge of the Court, who was appointed to the bench by President Clinton, provided an analysis showing that oral arguments for each active judge are also down almost 10% since Mr. Keisler’s nomination was blocked. 

“Mr. President, these analyses show that not only is the court less busy in absolute terms now than it was then.  It is less busy in relative terms as well, meaning when one takes into account the number of active judges serving on the court.

“The court’s caseload is so low, in fact, that it has cancelled oral argument days in recent years because of a lack of cases. 

“And after we confirmed the President’s last nominee to the D.C. Circuit just a few months ago—unanimously, I might add—one of the judges on the court said that if any more judges were confirmed, there wouldn’t be enough work to go around.

“So if the court’s caseload clearly doesn’t meet their own standards for more judges, why are Senate Democrats pushing to fill more seats on a court that doesn’t need them? 

“What’s behind this push to fill seats on a court that is cancelling oral argument days for a lack of cases and which, according to the judges who serve on it, won’t have enough work to go around if we do? 

“Well, we don’t have to guess.  Our Democratic colleagues and the Administration’s supporters have been fairly candid about it.  They have admitted they want to control the court so it will advance the President’s agenda. 

“As one Administration ally put it, ‘the president’s best hope for advancing his agenda is through executive action, and that runs through the D. C. Circuit.’

“Let me repeat, the reason they want to put more judges on the D.C. Circuit is not because it needs them, but because ‘the president’s best hope for advancing his agenda is through executive action, and that runs through the D.C. Circuit.’

“Another Administration ally complained that the court ‘has made decisions that have frustrated the president’s agenda.’

“Really?  The court is evenly-divided between Republican and Democratic appointees. 

“And according to data compiled by the federal courts, the D.C. Circuit has ruled against the Obama Administration in administrative matters less often than it ruled against the Bush Administration. 

“So it’s not that the court has been more unfavorable to President Obama than it was to President Bush.  Rather, the Administration and its allies seem to be complaining that the court hasn’t been favorable enough to it. 

“Evidently, they don’t want any meaningful check on the President.  You see, there is one in the House of Representatives, but the Administration can circumvent that with aggressive agency rulemaking.  That is, if the D.C. Circuit allows it to do so.

“Mr. President, a court should not be a rubberstamp for any administration.  And our Democratic colleagues told us again and again during the Bush Administration that the Senate confirmation process should not be a rubberstamp for any administration either. 

“For example, they said President Bush’s nomination of Miguel Estrada to the D.C. Circuit was ‘an effort to pack the Federal courts.’ And they filibustered his nomination—seven times, in fact.

“We have confirmed nearly all of President Obama’s judicial nominees.

“Like I said, we confirmed a judge to the D.C. Circuit, unanimously, a few months ago.

“This year, we have confirmed 34 circuit and district court judges; at this time in President Bush’s second term, the Senate had confirmed only 14 of these nominees.

“In fact, we confirmed President Obama’s nominees even during the government shutdown.

“In writing then-Judiciary Committee Chairman Arlen Specter to oppose the nomination of Peter Keisler, Senate Democrats said ‘Mr. Keisler should under no circumstances be considered—much less confirmed— . . . before we first address the very need for that judgeship . . . and deal with the genuine judicial emergencies identified by the Judicial Conference.’

“That course of action ought to be followed here, too.  Senator Grassley has legislation that will allow the President to fill seats on courts that need judges.  The Senate should support that legislation, not transparent efforts to politicize a court that doesn’t need judges in an effort to create a rubberstamp for the Administration’s agenda.”