Despite Impeccable Credentials, Former NY Solicitor General Caitlin Halligan Blocked From Seat on Nation’s Second Most Important Court

Schumer Says Partisan Move Marks Major Shift in Standards for Judicial Nominees, Warns GOP Has Declared ‘Open Season For Filibusters Of Judges’


WASHINGTON, DC—U.S. Senator Charles E. Schumer (D-NY) warned that a Senate Republican-led filibuster of President Obama’s nominee for the DC Circuit Court of Appeals could destroy a bipartisan agreement that has guided the Senate’s consideration of judges since 2005.


Caitlin Halligan, a New Yorker and the state’s former Solicitor General, had been nominated to fill the eighth seat on the DC Circuit, which is widely considered to be the nation’s second-most important court, behind only the Supreme Court. Despite Halligan’s impeccable qualifications, her nomination fell six votes short in the Senate on Tuesday due to near-unanimous opposition from Senate Republicans.


In a floor speech moments before the vote, Schumer warned that the partisan filibuster of Halligan’s nomination risked upsetting a gentlemen’s agreement in the Senate that gives the benefit of a doubt to qualified judicial nominees whose views fall in the mainstream. The so-called “Gang of 14” agreement, reached six years ago, set a standard for opposing judicial nominations only in cases of “extraordinary circumstances.” Such circumstances are limited to rare occasions where a nominee demonstrates ethical lapses, character problems or a lack of qualifications for a seat on the bench. Republicans could demonstrate none of these were true in the case of Halligan.


“The approach taken by Senate Republicans will have lasting consequences beyond this one nomination. It seems to me that a vote against this nominee could well be a vote to declare the Gang of 14 agreement null and void,” Schumer said.


“If Republicans are going to suddenly junk that six-year armistice, it could risk throwing the Senate into chaos on judicial nominees. Senate Republicans seem to want to declare open season for filibusters of judges again,” he added.


A full copy of Schumer’s floor remarks, as prepared for delivery, appears below.


Senator Charles E. Schumer

Statement on Caitlin J. Halligan Nomination for United States Court of Appeals for District of Columbia Circuit

December 6, 2011


As Prepared for Delivery


Madam/Mr. President, I rise this morning in support of the President’s first and only nominee to the United States Court of Appeals for the District of Columbia Circuit. Caitlin J. Halligan is a nominee whom any President, of any party, would be proud of.  I know from speaking to her, and getting to know her over this last year – and it has been over a year since she was nominated – that she has earned this honor. She has earned it through dint of hard work and native intelligence.  And importantly, Halligan has dedicated most of her professional life to government service.


I challenge anyone in this chamber to think hard about what we are looking for in a judge to the second most important court in the land.  Anyone who does can only conclude that Caitlin Halligan deserves an up-or-down vote. Does the President have to nominate a political conservative to clear the hurdle?  Or a lawyer who has practiced law in the shadows, never addressing a major legal issue of importance to the nation in her entire career? 


In 2005, 14 of my colleagues formed what was called the “Gang of 14.” In order to reduce filibusters, and overcome the push to change Senate rules to get rid of the filibuster, this bi-partisan group agreed not to filibuster any nominees who did not present “extraordinary circumstances.”


“Extraordinary circumstances” was not defined.  But my colleague Senator Graham said on the floor at the time, completely reasonably, that it meant no ideological attacks.  “Ideological attacks are not an ‘extraordinary circumstance.’ To me, it would have to be a character problem, an ethics problem, so allegations about the qualifications of a person, not an ideological bent.”


Caitlin Halligan does not have a character problem or an ethics problem.  It’s that simple.  No one has made a serious allegation that she does.


Mr./Madam President, if this body cannot invoke cloture on her nomination today, the Gang of 14 agreement, without a doubt, has been violated. The approach taken by Senate Republicans will have lasting consequences beyond this one nomination. It seems to me that a vote against this nominee could well be a vote to declare the Gang of 14 agreement null and void.


I was not a party to that agreement, but it would be impossible to deny it has guided this body’s consideration of judges since 2005. If Republicans are going to suddenly junk that six-year armistice, it could risk throwing the Senate into chaos on judicial nominees. Senate Republicans seem to want to declare open season for filibusters of judges again, at least at the Court of Appeals level. Things of late have gotten much better at the District Court level.  But the defeat of Caitlin Halligan could throw into chaos nominations at the Circuit Court for a long time.


And any attempt to paint her as so far out of the mainstream that she presents an “extraordinary circumstance” is twisting her record far beyond recognition. I have always said that ideology matters.  But I have also always said that candidates need only be mainstream – not too far left and not too far right. Halligan fits this bill precisely, to a “T.” Halligan has spent her career in government in both political and plenty of non-political positions. She has worked as a lawyers’ lawyer, and has expressed few views on public issues. She has written virtually nothing.


But at her hearing, she did answer questions. She acknowledged:

·         That executive power extends to indefinite detention of enemy combatants during time of war

·         That she would act with fealty to text and original intent in interpreting laws and the Constitution

·         That she believes the Second Amendment protects an individual right to bear arms

·         That the Eighth Amendment protects the constitutionality of the death penalty. 


Some of my colleagues have tried to paint Halligan has having filed briefs on behalf of clients that somehow indicate that she would be an activist as a judge. 


First, I’d like to point out that she is not the first nominee to come before the Senate and state that the views in the briefs that she writes for clients are not her own.  Now-Justice Roberts said the same thing.


Second, I’d like to rebut some of the things I’ve heard on the floor this morning about particular cases:


·         First, while she did represent the State of New York against gun manufacturers, those cases were made moot by Congressional law.  In her hearing, Halligan recognized this and said unequivocally that she supports the individual right to bear arms.

·         Second, it is simply wrong to suggest that Caitlin Halligan is somehow outside the mainstream on immigration because she filed a brief advocating that businesses should not be rewarded for hiring illegal immigrants by getting out of the requirement that backpay should be awarded when the workers are exploited.  And again, this brief was filed on behalf of a client.

·         Third, in the case of al-Marri, there is no argument that Halligan did anything other than make arguments on behalf of a client that were well within the mainstream.  The Administration itself abandoned the case, and charged al-Marri in civilian court.


Mr./Madam President, why are we arguing about whether she deserves an up or down vote?  Because, as with the Supreme Court, this is part of the far right’s attempt to pull the D.C. Circuit further and further away from the mainstream. 


Many conservatives pretend to decry “liberal judicial activism.”  But what they really want is judicial activism of the right.  A truly moderate judicial philosophy shows respect for Congress, for executive agencies that interpret the law, and for well-settled understandings that the American people commonly hold about their democracy.


There is no question that Halligan adheres to these principles.  She has extensive government experience, and she understands the demands and roles of the other branches. She has been a responsible and rigorous advocate for all of her clients, including the people of New York.  I have no doubt that as a judge she will be a responsible and rigorous advocate for the rule of law. Anyone who listened to her answer an hour of questions in committee, and read her responses to 150 questions for the record, cannot doubt but that she is even and modest in her approach to legal questions. 


Let me cite just one example:  When she was asked by Senator Grassley her view of deference to the legislative branch, here is how she responded:


“I think that the job of a judge is to examine the constitutionality of a statute when a constitutional challenge is presented, but I think that authority has to be exercised very sparingly and very carefully. I think particularly my experience defending a state government against a wide range of constitutional challenges on different issues has taught me just how serious an act it is for a judge to strike down a statute and, therefore, set aside the will of the people that are acting through their representatives.”


Time and time again, she answered similarly, with clear and unambiguous answers.


Some of my colleagues have accused Halligan of lacking candor in her answers. I have sat through a lot of hearings for nominees to federal courts of appeals, and I think I know evasion when I see it. Halligan was not evasive. She answered questions thoughtfully and forthrightly, and she explained the context of any past statements that might seem to have contradicted her current views.


This morning, some of my colleagues on the other side of the aisle pointed to two things that she did not write to try to indicate that she has activist views.


First, she gave a speech in 2003 on behalf of her boss, Elliot Spitzer, that she did not write herself.  In fact, she stepped in at the last minute to give the speech when he could not make it.  She did not write it, and she clarified that it did not reflect her personal views. 


Second, she was a member of a committee that issued a report on executive power and enemy combatants. She explained in her hearing that she had not seen the report and did not agree with either its contents or its tone.  In her hearing, she clearly stated her views on executive power.  This should have cleared up any doubt about her ability to recognize and respect the current state of the law. And in fact, at no time during her hearing, or during questioning after the hearing, did any Senator ever accuse her of obfuscating. Until now.


Finally, I want to say a word about a red herring of an argument that has been raised today – that the workload of the DC Circuit is too low to confirm Halligan. I’ve expressed this concern too, and in fact, in 2008, we voted to take away one of the seats of the DC Circuit.  It now has 11 judges, rather than 12. 


But I, as well as many of my colleagues on both sides of the aisle, have in the past reserved our concerns for nominees to the 11th seat, and what was then the 12th. Halligan has been nominated to the 9th seat, and the 10th and 11th seats remain vacant.


No one ever, at any time, either side of the aisle, has ever argued that the DC Circuit should have only 8 judges. I am concerned that we are hearing it now, for the first time, because the current make up of the court happens to be 5 Republican appointees and 3 Democratic appointees.


When we confirmed President Bush’s nominee to the 11th seat in 2005, Thomas Griffith, his confirmation resulted in there being 121 pending cases per judge.  Today there are 161 cases were judge, and her confirmation would result in a caseload of 143. There is simply no reason to argue about caseload. 


The fact is, if we can’t confirm Halligan, this won’t go down as a vote about caseload.  This will be recorded as a new bar for nominees. 


Mr./Madam President, when Caitlin Halligan drove with her father from her home in Kansas City to Harvard, or when she was a standout student at Georgetown Law School, or when she started her work for the New York Attorney General’s office, I’m sure that she could not have imagined that she would someday be the topic of a debate in the United States Senate about whether she was too radical, or lacked the candor, to be a judge.


I hope that when we vote, and the debate is over, my colleagues recognize the truth here:  Halligan is a sterling example of a public servant who has worked hard, earned every honor she has received, and fits squarely within the mainstream of judicial thought. She deserves an  up-or-down vote. I am proud to cast my vote for cloture on Caitlin Halligan’s nomination today.