[Congressional Record Volume 157, Number 186 (Tuesday, December 6, 2011)]
[Senate]
[Pages S8346-S8347]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     NOMINATION OF CAITLIN HALLIGAN

  Mr. McCONNELL. Now, Madam President, on yet another topic--there are 
a number of things going on this week--today the Senate will vote on 
the nomination of Caitlin Halligan to the U.S. Court of Appeals for the 
DC Circuit. I will be opposing this nominee, and I would like to 
explain why.
  First and foremost is Ms. Halligan's record of advocacy for an 
activist view of the judiciary and a legal career that leads any 
reasonable person to conclude that she would bring that activism right 
on to the court. As I have said many times before, the proper role

[[Page S8347]]

of a judge is that of an impartial arbiter who gives everybody a fair 
shake under the law as it exists. The role of a judge in our system, in 
other words, is to determine what the law says not what they or anybody 
else wants it to say. Yet looking over Ms. Halligan's record, it is 
pretty clear she does not share that view.
  In Ms. Halligan's view, the courts are not so much a forum for the 
evenhanded application of the law as a place where a judge can work out 
his or her own idea of what society should look like. As she herself 
once put it: The courts are a means to achieve ``social progress,'' 
with judges presumably writing the script.
  Well, my own view is that if the American people want to change the 
law, then they have elected representatives to do that, and these 
elected representatives are accountable to them. This also happens to 
be how the Founders intended it, and it is what the American people 
expect of their judges: to be fair, impartial arbiters. But that is not 
what they would get from a Judge Halligan.
  So how do we know this? Well, it is true that like many of this 
President's other judicial nominees, Ms. Halligan repudiated President 
Obama's own off-stated ``empathy standard'' for choosing judges and 
disclaimed an activist bent in her confirmation hearings. But her 
record belies this now familiar confirmation conversion.
  Let's take a quick look at her record to see what it does suggest 
about the kind of judge she would be.
  On the second amendment: As solicitor general of New York, Ms. 
Halligan advanced the dubious legal theory that those who make firearms 
should be liable for third parties who misuse them criminally. The 
State court in New York rejected the theory, noting it had never 
recognized such a novel claim. Moreover, the court called what Ms. 
Halligan wanted it to do to manufacturers of a legal product ``legally 
inappropriate.''
  So let me say again, the New York Appellate Court termed Ms. 
Halligan's activist and novel legal theory to be ``legally 
inappropriate.'' The Congress passed legislation on a wide bipartisan 
basis to stop these sorts of lawsuits because they were an abuse of the 
legal process. Undeterred, Ms. Halligan then chose to file an amicus 
brief in the Second Circuit Court of Appeals in another frivolous case 
against firearms manufacturers. Not surprisingly, she lost that case 
too.
  What about her views on enemy combatants?
  In 2005, the U.S. Supreme Court ruled in Hamdi v. Rumsfeld that the 
President has the legal authority to detain as enemy combatants 
individuals who are associated with al-Qaida. Yet despite this ruling, 
Ms. Halligan filed an amicus brief years later--years after that--
arguing that the President did not possess this legal authority.
  On abortion: Ms. Halligan filed an amicus brief in the U.S. Supreme 
Court arguing that pro-life protesters--protesters--had engaged in 
``extortion'' within the meaning of Federal law. The Supreme Court 
roundly rejected this theory 8 to 1.
  On immigration: Ms. Halligan chose to file an amicus brief in the 
Supreme Court arguing that the National Labor Relations Board should 
have the legal authority to grant backpay to illegal aliens even though 
Federal law prohibits illegal aliens from working in the United States 
in the first place. Fortunately, the Court sided with the law and 
disagreed with Ms. Halligan on that legal theory too.
  The point is that even in cases where the law is perfectly clear or 
the courts have already spoken, including the Supreme Court, Ms. 
Halligan chose to get involved anyway, using arguments that had already 
been rejected either by the courts, the legislature or, in the case of 
frivolous claims against gun manufacturers, by both. In other words, 
Ms. Halligan has time and time again sought to push her own views over 
and above those of the courts or those of the people as reflected in 
the law.
  Ms. Halligan's record strongly suggests that she would not view a 
seat on the U.S. appeals court as an opportunity to evenhandedly 
adjudicate disputes between parties based on the law but instead as an 
opportunity to put her thumb on the scale in favor of whatever 
individual or group cause in which she happens to believe.
  So, Madam President, we should not be putting these kinds of 
activists on the bench. I have nothing against the nominee personally. 
I just believe, as I think most Americans do, that we should be putting 
people on the bench who are committed to an evenhanded interpretation 
of the law so everyone who walks into a courtroom knows he or she will 
have a fair shake. In my view, Ms. Halligan is not such a nominee. On 
the contrary, based on her record and her past statements, I think she 
would use the court to put her activist judicial philosophy into 
practice, and for that reason alone she should not be confirmed. So I 
will be voting against cloture on this nomination, and I urge my 
colleagues to do the same.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Illinois.
  Mr. DURBIN. I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. REID. Madam President, would the Chair announce morning business, 
please.

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