[Congressional Record Volume 157, Number 186 (Tuesday, December 6, 2011)]
[Senate]
[Pages S8352-S8361]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EXECUTIVE SESSION
______
NOMINATION OF CAITLIN JOAN HALLIGAN TO BE UNITED STATES CIRCUIT JUDGE
FOR THE DISTRICT OF COLUMBIA CIRCUIT
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will proceed to executive session to consider the following
nomination, which the clerk will report.
The assistant legislative clerk read the nomination of Caitlin Joan
Halligan, of New York, to be United States Circuit Judge for the
District of Columbia Circuit.
The ACTING PRESIDENT pro tempore. Under the previous order, there
will be time for debate until noon, equally divided in the usual form.
Mr. LEAHY. Madam President, some of the people I have heard who
oppose Ms. Halligan were also some of the same people who successfully
opposed an effort in the Congress to actually protect police officers a
few years ago. So I want to put the opposition in context. It is
probably why so many law enforcement groups support Ms. Halligan,
because she stood up for law enforcement, unlike some of the groups we
have heard about who oppose her, who sought to make the life of police
officers more dangerous.
Be that as it may, the Senate stands at a crossroads today. Voting to
end the partisan filibuster of this judicial nomination is as important
as it was when the Senate did so in connection with the nomination of
Judge McConnell to the United States District Court of Rhode Island
earlier this year. If we allow the partisan filibuster to go forward,
then the Senate will be setting a new standard that no nominee can meet
if they wish to be confirmed to the DC Circuit.
Republican Senators who just a few years ago argued that filibusters
against judicial nominees were unconstitutional and said that they
would never support such a filibuster, and those who care about the
judiciary in the Senate, need to step forward and do the right thing.
You cannot say that filibusters against judicial nominees are
unconstitutional when you have a Republican President but suddenly
support a filibuster when you have a Democratic President. This goes
even beyond the standards that have driven the approval rating of
Congress to an all-time low for hypocrisy. We ought to end the
filibuster now and proceed to vote on this extraordinarily well-
qualified nominee.
Ms. Halligan, nominated to fill one of three vacant seats on the
important DC Circuit, is a highly regarded appellate advocate. She has
the kind of impeccable credentials in both public service and private
practice that have been looked for in the past by both Democratic and
Republican Presidents. Her nomination reminds me of John Roberts, when
he was confirmed by every single Democrat and every single Republican
to the DC Circuit in 2003. I certainly did not agree with every
position he had taken or argument he had made as a high-level lawyer in
several Republican administrations, but I supported his nomination to
the DC Circuit, as I did to the Supreme Court, because of his legal
excellence and ability.
It is frustrating to have Senators tell me privately they know Ms.
Halligan is just as qualified as John Roberts was, but this lobby and
that lobby are against her. Lobbyists come and go. The court is
supposed to be the epitome of justice in this country.
I trusted John Roberts' testimony that he would fairly apply the law
if confirmed. If the standard we used for him is applied to Ms.
Halligan, there is no question this filibuster will end and Caitlin
Halligan will be confirmed.
By any traditional standard, Caitlin Halligan is the kind of superbly
qualified nominee who should easily be confirmed by the Senate. Yet,
the Senate Republican leadership's filibuster of this nomination
threatens to set a new standard that could not be met by anyone. It
would not have been met by John Roberts. If this is the new standard,
it is wrong, it is unjustified and it is dangerous. Overcoming it will
take a handful of sensible Senate Republicans willing to buck their
leadership and some single-issue lobbyists. They have done it before
and they should again now. Those who care about the judiciary--and as
important, those who care about the Senate--need to come forward and
end this filibuster.
From the beginning of the Obama administration, we have seen too many
Senate Republicans shift significantly away from the standards they
used to apply to the judicial nominations of a Republican President.
During the administration of the last President, a Republican, they
insisted that filibusters of judicial nominees were unconstitutional.
They threatened the ``nuclear option'' in 2005 to guarantee up-or-down
votes for each of President Bush's judicial nominations.
Many Republican Senators declared that they would never support the
filibuster of a judicial nomination. Yet, only a few years later,
Senate Republicans reversed course and filibustered President Obama's
very first judicial nomination, that of Judge David Hamilton of
Indiana. They tried to prevent an up or down vote on his nomination
even though he was nominated by President Obama after consultation with
the most senior and longest-serving Republican in the Senate, Senator
Dick Lugar of Indiana, who strongly supported the nomination. The
Senate rejected that unjustified filibuster and Judge Hamilton was
confirmed with Senator Lugar's support.
With their latest filibuster, the Senate Republican leadership seeks
to set yet another new standard, one that threatens to make
confirmation of any nominee to the DC Circuit virtually impossible for
the future. Caitlin Halligan is a well-qualified nominee with a
mainstream record as a brilliant advocate on behalf of the State of New
York and in private practice. She served for nearly six years as
Solicitor General of New York and has been a leading appellate lawyer
in private practice, currently serves as General Counsel at the New
York County District Attorney's Office, and has served as counsel of
record in nearly 50 matters before the U.S. Supreme Court, arguing five
cases before that court and many cases before Federal and state
appellate courts. She clerked for Supreme Court Justice Stephen Breyer
and for Judge Patricia Wald on the DC Circuit, the court to which she
has been nominated. No Senator has or can question her qualifications.
I have reviewed her record carefully in the course of the Judiciary
Committee's thorough process, including her response to our extensive
questionnaire and her answers to questions at her hearing and in
writing following the hearing. In my view, there is no legitimate
reason or justification for filibustering her nomination.
Yesterday, I put into the Record some of the many letters of support
we have received from across the political spectrum for Ms. Halligan's
nomination. These letters are a testament to both her exceptional
qualifications to serve and to the fact that this should be a consensus
nomination, not a source of controversy and contention. They attest to
the fact she is not a closed-minded idealogue, but is the kind of
nominee who has demonstrated not only legal talent but also a
dedication to the rule of law throughout her career. We should
encourage nominees with the qualities of Ms. Halligan to engage in
public service. We should welcome people like her to serve on the
Federal bench, not denigrate them. Concocted controversies and a
blatant misreading of Ms. Halligan's record as an advocate are no
reason to obstruct this outstanding nomination.
I also demonstrated yesterday that any so-called ``caseload'' concern
is no justification for filibustering this nomination. This was not a
concern we heard from Republicans when they voted to confirm President
Bush's nominees to fill not only the 9th seat, but also the 10th seat
and the 11th seat on this court a couple of years ago. They should not
now use caseload as an excuse to filibuster President Obama's
nomination to fill the ninth seat when the DC Circuit's caseload has
increased. There are only two differences today than when President
Bush's nominees to the DC Circuit were confirmed in 2005 and 2006: One,
the caseload per active judge has increased, not decreased; and we have
a Democratic President, not a Republican President.
The DC Circuit is often considered the second most important court in
the land because of the complex cases that it handles, cases that have
grown in
[[Page S8353]]
importance since the attacks of September 11. As noted in a recent
Washington Post editorial: ``[Caseload numbers do] not take into
account the complexity and scope of the cases that land at the court.
They include direct appeals involving federal regulatory decisions and
national security matters, including cases stemming from the detentions
at the U.S. naval base in Guantanamo Bay, Cuba.'' I ask unanimous
consent that a copy of this editorial and one from today's Boston Globe
be printed in the Record at the conclusion of my remarks, along with
letters to the editor of the Washington Post in support of Ms.
Halligan's nomination.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1)
Mr. LEAHY: Yet the DC Circuit is now more than one-quarter vacant,
with three judicial vacancies. The caseload per active judge has gone
up since Republican Senators supported every one of President Bush's
nominations to that court. According to the Administrative Office of
U.S. Courts, the caseload per active judge has increased by one third
since 2005, when the Senate confirmed President Bush's nomination of
Thomas Griffith to fill the 11th seat on the DC Circuit. That is
right--the DC Circuit's caseload has actually increased. By any
objective measure, the work of the DC Circuit has grown, and the
multiple vacancies should be filled, not preserved and extended for
partisan purposes. The ``extraordinary circumstance'' that exists here
is the more than one-quarter vacancy level on this court, with only
eight active judges.
If caseloads were really a concern of Republican Senators, they would
not be standing by while their leadership delays Senate consideration
of the nominations of Morgan Christen of Alaska and Jacqueline Nguyen
of California to the Ninth Circuit, and Judge Adalberto Jordan of
Florida to the Eleventh Circuit. These two circuits have the highest
number of cases per active judge. The Ninth Circuit is burdened by
multiple vacancies and the largest caseload in the nation. Judge Nguyen
is nominated to fill the judicial emergency vacancy that remains open
after the Republican filibuster of Goodwin Liu. I have repeatedly urged
the Senate to take up and consider these nominations, which are
supported by home state Senators, yet Republicans have refused to
consider them for months. Anyone truly concerned about courts'
caseloads should join with me to consider the other 20 judicial
nominations still pending on the Senate calendar and awaiting final
action.
Given Caitlin Halligan's impeccable credentials and widespread
support, this should be the kind of consensus nomination supported by
Senators of both parties who seek to ensure that the Federal bench
continues to attract the best and the brightest. Certainly, by the
standard utilized in 2005 to end filibusters and vote on President
Bush's controversial nominees, this filibuster should be ended and the
Senate should vote on the nomination. Those Senators who claim to
subscribe to a standard that prohibits filibusters of judicial nominees
except in ``extraordinary circumstances'' should keep their word and
not support this filibuster. There are no ``extraordinary
circumstances'' to justify the filibuster.
In 2005, Senator Graham, a member of the ``Gang of 14'' described his
view of what comprises the ``extraordinary circumstances'' justifying a
filibuster. He said: ``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 has no character problem,
no ethics problem, and there is no justification for this filibuster.
Caitlin Halligan is a superbly qualified nominee whose personal
integrity, temperament, and abilities have been attested to by the many
leading lawyers who have worked with her and against her. They all
attest to her integrity and temperament and abilities.
The signers of the 2005 Memorandum of Understanding, and the Senate,
demonstrated what they thought that agreement entailed when they
proceeded to invoke cloture on a number of controversial nominations.
The Senate invoked cloture on the nominations of Janice Rogers Brown
and Thomas Griffith to the DC Circuit, the circuit to which Caitlin
Halligan has been nominated.
As a Justice on the California Supreme Court, Janice Rogers Brown was
a nominee with a consistent and extensive record, both on the bench and
off, of using her position as a member of the court to put her views
above the law. This was not a question of one case or one issue on
which Democrats differed with the nominee--I have voted for hundreds of
nominees of Republican and Democratic Presidents which whom I differ on
many issues. But this was a nominee with views so extreme she was
opposed not just by her home state Senators, but also by more than 200
law school professors from around the Nation who wrote to the Committee
expressing their opposition. Her record in numerous decisions as a
judge showed that she was willing to put her personal views above the
law on issue after issue, including a willingness to roll back the
clock 100 years on workers' and consumers' rights, to undermine clean
air and clean water protections for Americans and their communities,
laws providing affordable housing, zoning laws that protect homeowners,
and protections against sexual harassment, race discrimination,
employment discrimination, and age discrimination. In fact, while
serving on the California Supreme Court, Justice Brown had argued that
Social Security was unconstitutional, a position clearly at odds with
well established law. She went so far as to say ``today's senior
citizens blithely cannibalize their grandchildren.''
Despite her ideological extremism and willingness to implement her
radical personal views as a judge without regard to the existing law,
she was confirmed to the DC Circuit. Her nomination was judged not to
present ``extraordinary circumstances'' supporting a filibuster. There
is no justification under the standard applied to the nomination of
Janice Rogers Brown for a filibuster of the nomination of Caitlin
Halligan, a widely-respected nominee with a clear devotion to the rule
of law and no record of ideological extremism.
The nomination of Thomas Griffith to the DC Circuit was also
determined not to present ``extraordinary circumstances'' despite his
decision to practice law without a license for a good part of his
career, which I felt should be disqualifying. He was confirmed to fill
the 11th seat on the DC Circuit. There is no question that under the
standard Republicans applied to the nomination of Thomas Griffith,
Caitlin Halligan should be confirmed to fill the ninth judgeship on
that court.
I urge Republican and Democratic Senators to come together and end
this misguided filibuster of Caitlin Halligan's nomination to the DC
Circuit. There is no basis under any appropriate standard for blocking
her nomination from having an up-or-down vote. To the contrary, Caitlin
Halligan's impeccable credentials and record as an accomplished
advocate make her nomination worthy of bipartisan support.
Exhibit 1
[From the Boston Globe, Dec. 6, 2011]
Outrage Machine Grinds Away
(Editorial)
Discrediting perfectly qualified nominees to the federal
judiciary is a dreary, familiar business--one whose latest
target is Caitlin Halligan, a former New York solicitor
general who once clerked for Supreme Court Justice Stephen
Breyer. Ever since President Obama nominated her for the DC
Circuit Court of Appeals last year, critics have been combing
her record for evidence of dangerous radicalism.
They haven't found any. But in the crude world of judicial-
nomination fights, a nuanced discussion of New York's
marriage laws becomes a self-evident slant toward same-sex
marriage. Others depict her as anti-gun because she signed a
brief in a liability suit against gun manufacturers. The
group Gun Owners of America has conveniently pre-written an
e-mail, which members can robo-send to their senators,
denouncing Halligan's nomination as ``inconceivable.''
Halligan may not be GOP senators' first choice for an
appellate-court seat. And if a Republican president had
chosen a former Texas solicitor general who'd clerked for
Antonin Scalia, some of the same groups now defending
Halligan would surely be scraping around for reasons why the
nominee was utterly unsuitable for the job. But the Senate
need not dignify these tactics.
In a way, Halligan is lucky; rather than stringing her
along endlessly, the Senate has scheduled a vote today to end
debate on her
[[Page S8354]]
nomination. GOP senators--including Scott Brown--should
acknowledge that her views appear to be well within the legal
mainstream, and vote to end the filibuster against her. Her
nomination deserves, at the least, an up-or-down confirmation
vote.
____
[From the Washington Post, Nov. 22, 2011]
Senate Should Confirm Caitlin Halligan to the D.C. Circuit Court
(Editorial)
When Caitlin J. Halligan was nominated in 2010 to a seat on
the U.S. Court of Appeals for the D.C. Circuit, the
prestigious 11-member court had two vacancies. Today, there
are three, after Judge Douglas H. Ginsburg took senior status
this fall.
Yet some Senate Republicans argue that there is no need to
install Ms. Halligan because the court's caseload has shrunk.
Others look suspiciously on her purported views on
antiterrorism policy. GOP senators are grasping at straws to
block Ms. Halligan's ascension, perhaps in hopes of
preserving the vacancy for a Republican president to fill.
These lawmakers rightly objected to such tactics when
deployed by Democrats to stall or defeat well-qualified
Republican nominees; they should not revert to them now when
a Democrat controls the White House.
Ms. Halligan has had a distinguished career and deserves to
be confirmed. A graduate of the Georgetown University Law
Center, she clerked for D.C. Circuit Judge Patricia M. Wald
and later for Supreme Court Justice Stephen Breyer. She has
served as head of the appellate practice at a top New York
law firm, as solicitor general in that state and now as
general counsel for the New York County District Attorney's
Office in Manhattan. The American Bar Association gave Ms.
Halligan a unanimous well-qualified rating. The Senate
Judiciary Committee approved her nomination seven months ago;
she has been waiting for a floor vote ever since.
While it is true that caseloads have been inching downward
at the D.C. Circuit, the decline does not take into account
the complexity and scope of the cases that land at the court.
They include direct appeals involving federal regulatory
decisions and national security matters, including cases
stemming from the detentions at the U.S. naval base in
Guantanamo Bay, Cuba.
Critics note that Ms. Halligan's name appears on a 2004
report by the New York City Bar Association that lambasted
the Bush administration for asserting the legal authority to
hold enemy combatants without trial until the cessation of
hostilities; the Supreme Court ultimately endorsed the
administration's position. Ms. Halligan acknowledges that she
was a member of the committee that wrote the report but
testified that she was not involved in its development or
writing and said she learned of it only in 2010, while
gathering material for the confirmation process. Ms. Halligan
testified that she did not agree with the report's
conclusions.
Some critics suggest that Ms. Halligan's repudiation is a
``confirmation conversion.'' Yet no evidence to dispute her
account has emerged during the eight months since her
hearing. The report episode is odd but should not disqualify
Ms. Halligan, given the mountain of evidence that she is a
smart and well-qualified candidate.
____
Franklin County,
Malone, NY, February 14, 2011.
Senator Patrick J. Leahy,
Chairman, U.S. Committee on the Judiciary, Dirksen Senate
Office Building, Washington, DC.
Dear Chairman Leahy: I once discussed on a plane ride to
Washington with you your time as a Prosecutor. Today it is my
pleasure and honor to write a letter supporting the
nomination of a fellow prosecutor, Caitlin J. Halligan, for
the DC Circuit Court of Appeals.
In my service as District Attorney of Franklin County in
rural upstate New York and as President of the District
Attorneys Association of the State of New York, I have had
the distinct privilege of working closely with Ms. Halligan
during the past year. In her position as General Counsel to
Manhattan District Attorney Cyrus R. Vance, Jr., she has
consistently demonstrated her unconditional support of the
interests of law enforcement and has lent her exceptional
expertise as an advocate for the rule of law to the complex
issues that confront our state across its many varied
interests.
Having first heard of Ms. Halligan's remarkable legal
abilities during her tenure as Solicitor General of New York
State under Governor George Pataki, I am delighted now to
have learned firsthand that she is a consummate ``lawyer's
lawyer''. She has unparalleled legal reasoning skills and a
firm commitment to our constitutional values.
Thank you for this opportunity to express my support for
this exceptional judicial candidate.
Very truly yours,
Derek P. Champagne,
District Attorney.
____
County of Onondaga,
Syracuse, NY, February 16, 2011.
Re Caitlin Halligan.
Senator Patrick Leahy,
Chairman, U.S. Senate Committee on the Judiciary, Dirksen
Senate Office Building, Washington, DC.
Dear Senator Leahy: I write this letter in support of the
President's nomination of Caitlin Halligan for the United
States Court of Appeals for the District of Columbia Circuit.
By way of a brief introduction, I am a career prosecutor,
having served twenty years as the elected District Attorney
of Onondaga County (just under a half a million population)
in Upstate New York and ten years as an assistant district
attorney prior to that. I am the New York State
representative to the National District Attorneys Association
and serve on that body's Executive Committee. I am also co-
chairman of the American Bar Association's Criminal Justice
Section's Committee on Science and Technology and I have been
appointed by Governors Pataki, Spitzer and Cuomo to serve on
New York State's Forensic Science Commission. I am a past
President of the New York State District Attorneys
Association and currently serve on its Board of Directors. I
am also a life long Republican, but nobody's perfect.
Cy Vance is the current District Attorney of New York
county having succeeded the legendary Bob Morgenthau. Cy is a
good friend and has quickly established himself in New York
as an outstanding prosecutor and a resource for his sixty-one
other colleagues throughout the State. And one of the really
great things that Cy does is surround himself with quality
people. A perfect example of one of those quality people is
Caitlin Halligan, currently Cy's General Counsel at the
Manhattan District Attorney's Office.
Caitlin's resume makes it hard to believe she is only
forty-four years old. Educated at Princeton with a law degree
from Georgetown, Caitlin served as law clerk to two of
America's most illustrious jurists. Her service to my home
State of New York has been both distinguished and invaluable.
As a member of the Attorney General's Internet Bureau,
Caitlin helped develop initiatives to battle on-line fraud
and protect individual privacy. Many of those initiatives are
still employed by local offices. Rising through the ranks of
the Attorney General's Office, Caitlin for five years served
as our State's Solicitor General, arguing cases before all
appellate levels, including the United States Supreme Court.
Caitlin's reputation was nothing short of outstanding which
is one of many reasons my friend Cy Vance was lucky enough to
entice her back into public service as his General Counsel.
I fully understand the political give and take of the
nomination process, particularly when the position is of such
import. Words uttered and position papers written decades
earlier take on greater significance. Each party would prefer
to have a nominee whose judicial philosophy is most closely
attuned to their core beliefs. Ultimately, it is the
President's choice and frankly I do not think any President,
Democrat or Republican, could find a more qualified, a more
honorable or a finer candidate than Caitlin Halligan.
Sincerely,
William J. Fitzpatrick,
District Attorney.
____
Richmond County,
Staten Island, NY, February 25, 2011.
Re Caitlin J. Halligan.
Hon. Patrick J. Leahy,
Chairman, U.S. Senate Committee on the Judiciary, Dirksen
Senate Office Building, Washington, DC.
Dear Senator Leahy: I write in support of the nomination of
Caitlin J. Halligan for a seat on the United States Court of
Appeals for the D.C. Circuit. Ms. Halligan's experience and
accomplishments as an appellate lawyer make her an ideal
appointee to that Court.
Ms. Halligan, currently employed by the New York County
District Attorney's Office as General Counsel, has served as
First Deputy Solicitor General, then Solicitor General of the
State of New York and as head of the appellate practice
section at the New York law firm of Weil, Gotshal and Manges
LLP. In her time as First Deputy and then Solicitor General,
she was responsible not only for briefing and arguing her own
cases, but for supervising the appellate litigation conducted
by New York State's Attorney General as well.
In her time in private practice and in the Office of the
New York State Solicitor General, Ms. Halligan has briefed
and argued cases at all levels of appellate courts in the
United States, ranging from the United States Supreme Court
to New York State's intermediate appellate court, the
Appellate Division and has also supervised briefs filed in
those courts. The cases in which she has been involved,
either as principal attorney or supervisor, span such diverse
areas as prisoner civil rights matters, environmental, voting
rights and free speech issues, and commerce clause matters.
This breadth of practice areas--both in terms of the courts
in which Ms. Halligan has appeared and the nature of the
cases in which she has been involved--certainly has provided
Ms. Halligan with the background necessary for success as a
Circuit Court judge, particularly in view of the wide variety
of matters that will come before Ms. Halligan should she be
confirmed to a seat on the D.C. Circuit.
In short, Ms. Halligan's experience as an appellate
practitioner and the wide variety of issues with which she
has dealt will serve her well in her capacity as a Circuit
Judge and I am pleased to offer my support for her
confirmation.
Sincerely,
Daniel M. Donovan, Jr.,
District Attorney.
[[Page S8355]]
____
New York State Association of
Chiefs of Police, Inc.,
Schenectady, NY, April 27, 2011.
Hon. Patrick J. Leahy,
Chairman, Senate Judiciary Committee, Dirksen Senate Office
Building, Washington, DC.
Hon. Charles E. Grassley,
Ranking Member, Senate Judiciary Committee, Dirksen Senate
Office Building, Washington, DC.
Dear Chairman Leahy and Senator Grassley: On behalf of the
New York State Association of Chiefs of Police, I am writing
to express our unqualified support for the nomination of
Caitlin J. Halligan for the position of United States Circuit
Judge for the District of Columbia Circuit.
Our Association was founded in 1901 and has almost 600
active members including Police Chiefs, Commissioners,
Superintendents and other command level officers. Our primary
purpose is to provide training for our members and to serve
as an information hub for them as well. We take great pride
in helping to advance the cause of professional policing and
take very seriously our obligations to support individuals
who we believe will serve our nation's criminal justice
system well.
An examination of Ms. Halligan's credentials clearly
indicates to us that she is one of those individuals She has
demonstrated an understanding of the need for strong law
enforcement to protect those in our communities least able to
protect themselves. She has extensive experience as an
appellate lawyer and has worked on many important cases being
handled by the most senior courts in our judicial system.
Our Board of Governors who represent police agencies across
the State from the largest to the smallest have unanimously
voted to endorse her nomination. We urge you to give her the
most serious consideration for this most important
appointment.
Thank you for your attention to our interests and please
feel free to contact us if we may ever be of assistance.
Respectfully,
John P. Grebert,
Executive Director.
____
New York
Women in Law Enforcement,
Albany, NY, May 31, 2011.
Hon. Patrick J. Leahy,
Chairman, Senate Judiciary Committee, Dirksen Senate Office
Building, Washington, DC.
Hon. Charles E. Grassley,
Ranking Member, Senate Judiciary Committee, Dirksen Senate
Office Building, Washington, DC.
Dear Chairman Leahy and Senator Grassley: On behalf of the
New York, Women in Law Enforcement (NYWLE), I am writing to
express our support for the nomination of Caitlin J. Halligan
for the position of United States Circuit Judge for the
District of Columbia Circuit.
The primary mission of NYWLE is to support the recruitment,
retention and promotion of women within the criminal justice
system. It is with enthusiasm that we support the appointment
of Ms. Halligan, a person of nobility and integrity to this
honorable position.
Her vast experience arguing cases before both state and
federal appellate courts coupled with her rapid advancement
in her career speak to her elevated level of intelligence and
integrity. Her pro bono work on the memorial for the World
Trade Center demonstrates her noble commitment to doing what
is right for individuals in need. She exemplifies all the
characteristics of a person we would want to serve the people
of this country in such a crucial judgeship.
In summary, the Board of the NYWLE, whose 19 names and
positions are outlined on this letterhead, highly recommends
Ms. Halligan as a Federal Circuit Judge. We thank you for
your consideration in this matter.
Respectfully,
Deborah J. Campbell,
President.
____
National Center for
Women & Policing,
Arlington, VA.
Hon. Patrick J. Leahy,
Chairman, Senate Judiciary Committee, Dirksen Senate Office
Building, Washington, DC.
Hon. Charles E. Grassley,
Ranking Member, Senate Judiciary Committee, Dirksen Senate
Office Building, Washington, DC.
Dear Chairman Leahy and Senator Grassley: On behalf of the
National Center for Women and Policing (NCWP), I am writing
to express our utmost support for the nomination of Caitlin
J. Halligan for the position of United States Circuit Judge
for the District of Columbia Circuit.
A division of the Feminist Majority Foundation, the NCWP
has been working since 1995 to educate criminal justice
policy makers, the media and the public about the impacts of
increasing the representation of women in policing. Our goals
include ensuring that gender is always considered during the
analysis of contemporary policing issues, and that law
enforcement agencies strive for gender balancing their
departments. We take great pride in helping to advance the
cause of professional policing and take very seriously our
obligations to support individuals who we believe will serve
our nation's criminal justice system overall.
Ms. Halligan is clearly an individual we would want to
support to serve our criminal justice system at the national
level. Her extensive experience either representing cases
before the Supreme Court or arguing cases before the state
and federal appellate courts whether as the Solicitor General
for New York State, the Counsel for New York County's
District Attorney Office or for private practice is
impressive. Her pro bono work on the memorial for the World
Trade Center is honorable. She is clearly a person of solid
standing and integrity a person we would want serving the
people at one of our highest courts.
We are confident she would provide fair and equal justice
and therefore respectfully request your consideration for Ms.
Halligan for this critical appointment.
Respectfully,
Margaret Moore,
Director.
____
National Conference
of Women's Bar Associations,
Portland, OR, June 23, 2011.
Re Nomination of Caitlin J. Halligan to the United States
Court of Appeals for the District of Columbia Circuit.
Hon. Patrick J. Leahy,
Chair, Dirksen Senate Office Building, Washington, DC.
Hon. Charles Grassley,
Ranking Member, Dirksen Senate Office Building, Washington,
DC.
Dear Chairman Leahy and Ranking Member Grassley: On behalf
of the National Conference of Women's Bar Associations, we
write to express our enthusiastic support for the nomination
of Caitlin J. Halligan to the United States Court of Appeals
for the District of Columbia Circuit.
Ms. Halligan's broad experience, public service and
intellect make her well suited to the federal appellate
bench, and her appointment would add much needed diversity to
the federal court, where currently only three women are among
the active judges on the DC Circuit.
We join with many other organizations such as the National
District Attorneys Association, the New York Women in Law
Enforcement and the Women's Bar Association of the District
of Columbia in urging the speedy confirmation of this
outstanding nominee.
Very truly yours,
Mary E. Sharp,
President.
____
Women's Bar Association
of the District of Columbia,
Washington, DC, June 16, 2011.
Re Nomination of Caitlin J. Halligan to the United States
Court of Appeals for the District of Columbia Circuit.
Hon. Patrick J. Leahy,
Chair, Dirksen Senate Office Building, Washington, DC.
Hon. Charles Grassley,
Ranking Member, Dirksen Senate Office Building, Washington,
DC.
Dear Chairman Leahy and Ranking Member Grassley: On behalf
of the Women's Bar Association of the District of Columbia
(WBA), we write to express the WBA's enthusiastic support for
Caitlin J. Halligan's nomination to the United States Court
of Appeals for the District of Columbia Circuit.
Ms. Halligan is exceptionally well-qualified for the
position to which she has been nominated. Her confirmation
would add not only superior intellect, but also much needed
diversity to the federal appellate courts.
The WBA's principal goal in supporting judicial candidates
is to ensure the appointment of qualified judges and,
consistent with that goal, to increase the number of judges
who support the mission of the WBA. We give priority in our
recommendations to candidates with extensive litigation
experience, a demonstrated commitment to the equality of all
litigants, and an attention to women's needs and concerns.
The WBA evaluates each candidate for endorsement by reviewing
his or her resume and other supporting documentation, and by
discussing, with references the candidate's qualifications,
integrity, temperament, experience, and commitment to the
concepts of equal opportunity and equal justice under law.
Ms. Halligan is without question eminently qualified to
join the D.C. Circuit Court of Appeals. Her academic and
legal credentials are of the highest caliber. Ms. Halligan's
legal career began at Georgetown University Law Center, where
she graduated Order of the Coif and was Managing Editor of
the Georgetown Law Review. She subsequently clerked for Judge
Patricia M. Wald on the D.C. Circuit Court of Appeals, and
later for Justice Stephen G. Breyer of the United States
Supreme Court. The majority of her outstanding legal career
has been focused upon public service. From 2001-2006, she
served as Solicitor General of the State of New York, and she
currently serves as General Counsel to the New York County
District Attorney's office. In between, Ms. Halligan headed
the appellate practice at Weil, Gotshal and Manges, LLP. She
has served as counsel of record for a party or amicus at the
certiorari or merits stage in more than 40 matters in the
United States Supreme Court. She has also argued five cases
before the Court, including as recently as March 2011, and
won awards from the National Association of Attorneys General
in five consecutive years as New York's Solicitor General.
Ms. Halligan's contributions to the legal profession have
extended well beyond her day job. She has taught as an
adjunct professor at Georgetown University Law Center,
[[Page S8356]]
and as a Lecturer in Law at Columbia Law School. Ms. Halligan
has also made significant pro bono contributions, serving as
a member of the Boards of Directors of the National Center
for Law and Economic Justice and the Fund for Modern Courts,
as pro bono counsel to the Board of Directors of the Lower
Manhattan Development Corporation, and as counsel for
Hurricane Katrina and Rita evacuees before the Fifth Circuit.
Through her activities, Ms. Halligan has demonstrated a
commitment to the concepts of equal opportunity and equal
justice under law both inside and outside the courtroom.
Given her record of achievement and breadth of experience,
it is not surprising that Ms. Halligan has received a
unanimous rating of Well-Qualified from the ABA's Standing
Committee on the Federal Judiciary, the highest rating
available. She has the support of numerous organizations,
including the District Attorneys Association of the State of
New York, the National District Attorneys Association, the
New York State Association of Chiefs of Police, the New York
State Sheriffs Association, the New York Women in Law
Enforcement, and the National Center for Women & Policing. In
addition, a bi-partisan group of prominent appellate
practitioners that includes Cliff Sloan, Sri Srinivasan,
Miguel Estrada, Carter Phillips and numerous others has
submitted an enthusiastic letter praising the abilities and
character of Ms. Halligan and expressing their unanimous
belief that ``Caitlin is an outstanding selection for the
D.C. Circuit.''
Beyond Ms. Halligan's obvious qualifications, we must note
that her confirmation would add much needed diversity to the
federal bench. Out of 179 seats on the federal appellate
courts, only 50 are currently held by women. The D.C. Circuit
has eleven authorized judgeships, with two current vacancies,
but only three women are among the active judges. Ms.
Halligan possesses impeccable credentials and would be a
worthy addition to the DC Circuit.
For all of these reasons, the WBA is proud to support
Caitlin Halligan's nomination, and strongly urges the Senate
to vote to confirm her to the United States Court of Appeals
for the District of Columbia Circuit. She is a superlative
lawyer with a broad range of experience, and her commitment
to fairness, stellar intellect, judicious temperament, and
principled nature make Ms. Halligan a superb nominee. If you
have any questions regarding this letter of support, please
contact the WBA office.
Sincerely,
Monica G. Parham,
President.
____
[From the Washington Post, Dec. 5, 2011]
Put Caitlin Halligan and Others on the D.C. Circuit
The Nov. 23 editorial ``Time to Pass Judgment'' argued that
the Senate should confirm Caitlin J. Halligan to a seat on
the U.S. Court of Appeals for the D.C. Circuit. I fully
agree. Ms. Halligan has excellent qualifications and appears
to be an extremely bright and capable judicial candidate. It
seems, however, that Senate Republicans have one major
problem with Ms. Halligan: She looks too much like a future
Supreme Court nominee. That is the same problem Senate
Democrats had with Miguel A. Estrada when they blocked his
appointment to the D.C. Circuit.
The Halligan and Estrada nominations are just two examples
of the petty and unnecessary charade that is the current
Senate judicial confirmation process. Though this problem is
decades old, perhaps President Obama could make a bold effort
at bilateral disarmament and prove his bipartisan bona fides
at the same time.
Assuming Ms. Halligan is confirmed, the D.C. Circuit will
still have two open seats, to which Obama should nominate Mr.
Estrada and Goodwin Liu. Both Mr. Estrada (a Bush nominee)
and Mr. Liu (an Obama nominee) are brilliant lawyers, and
both were blocked by tit-for-tat Senate politics. Such a move
by Mr. Obama could soften the gridlock that has plagued
judicial nominations for so many years.
Jeff Luoma,
North Bethesda.
In addition to all of the reasons that The Post's editorial
cited in urging that the Senate confirm Caitlin J. Halligan,
one other important factor is that this outstanding nominee
would be only the sixth female judge in the 118-year history
of the U.S. Court of Appeals for the D.C. Circuit, thus
adding to the court's diversity.
Eight months is far too long to deprive the D.C. Circuit of
a nominee of Ms. Halligan's talents; the Senate should vote
Tuesday to cut off debate on her nomination and vote
immediately afterward to confirm her.
Marcia D. Greenberger,
Washington.
Mr. LEAHY. Madam President, I suggest the absence of a quorum, and I
ask unanimous consent that the time during the quorum be equally
divided.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. LEAHY. Madam 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. LEAHY. I see the distinguished Senator from New York on the
floor, and I have a feeling that she will have a statement of support
of this superb nominee.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from New York.
Mrs. GILLIBRAND. Madam President, I am very proud to support the
nomination of Caitlin Halligan to the U.S. Court of Appeals for the
District of Columbia.
Caitlin Halligan has distinguished herself through her commitment to
fairness, reasoned intellect, personal ethics, and a profound respect
for the law. Unfortunately, it appears that some of my colleagues are
determined to criticize her, regardless of the facts or her record. The
major concern seems to be the workload demands for the DC Circuit. This
is not a reason to oppose this candidate's nomination.
In 2008, the Senate acted to reduce the number of seats on the DC
Circuit from 12 to 11, increasing the caseload for each of the judges.
Currently, there are only eight active judges on the DC Circuit,
leaving the bench more than 27 percent vacant. That means the U.S.
Circuit Court currently has three vacancies--three vacancies on a court
that is currently handling more than 1,200 cases; three vacancies on a
court that handles some of the most complicated decisions, including
terrorism cases.
Today we have the opportunity to fill one of these vacancies on the
DC Circuit, often called the second most important court in the entire
United States. The caseload of the DC Circuit has remained consistent
since 2005, while the number of cases per judge has increased by 33
percent. If Ms. Halligan is confirmed, it will reduce that caseload
from its current level of approximately 161 pending cases to
approximately 143 per judge, still substantially higher than during the
previous administration.
The DC Circuit Court of Appeals reviews complicated decisions and
rulemaking of many Federal agencies and in recent years has handled
some of the most important terrorism and detention cases since the
horrific attacks on September 11. These cases are complex, requiring
additional time to allow for the consideration they demand.
Many of my colleagues have raised concerns with positions Ms.
Halligan advocated while solicitor general of New York. She filed
briefs at the direction of the Attorney General. She was not promoting
her own personal views. Many of these cases focused explicitly on New
York State's rights to govern in traditional State law areas.
Caitlin Halligan is a woman of superb intellect, a history of
laudable achievements, and a record of outstanding public service. Not
only does she deserve an up-or-down vote, but on the merits she
deserves the full support of the Senate. I ask my colleagues to allow
for an up-or-down vote on Caitlin Halligan's nomination. Let's debate
Ms. Halligan on her merits. She deserves nothing less.
Madam President, I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Utah.
Mr. LEE. Madam President, I rise to speak today in opposition to the
nomination of Caitlin Halligan to be a judge in the U.S. Court of
Appeals for the DC Circuit.
The DC Circuit is arguably the most important Federal appellate court
in our Federal judicial system, with primary responsibility to review
administrative decisions made by countless Federal departments and
agencies. It has also served in many instances as a steppingstone for
judges who are later appointed to the U.S. Supreme Court. As a result,
the Senate has historically very closely scrutinized nominees to the DC
Circuit.
When evaluating particular nominees, we have also carefully
considered the need for additional judges on that court.
In July 2006, President Bush nominated an eminently qualified lawyer,
Peter Keisler, to fill a seat on the DC Circuit. Mr. Keisler is among
the very finest attorneys in the country. Because of his nonideological
approach to the law, Mr. Keisler enjoys broad bipartisan support
throughout the legal profession. Despite these unassailable legal
qualifications, Democratic Senators blocked his nomination. He did
[[Page S8357]]
not receive any floor consideration whatsoever, not even a cloture
vote, and his nomination languished in the Judiciary Committee. At the
time, a number of Democratic Senators sent a letter to the Judiciary
Committee chairman arguing that a nominee to the DC Circuit ``should
under no circumstances be considered, much less confirmed, before we
first address the very need for that judgeship''--the judgeship he
would occupy. These Senators specifically argued that a DC Circuit's
comparatively moderate caseload in 2006 simply did not justify the
confirmation of an additional judge to that court.
Five years have now passed and Ms. Halligan has been nominated to
that very same seat on the DC Circuit. But the court's caseload remains
as minimal as it did then. According to the Administrative Office of
U.S. Courts, the DC Circuit caseload per judge is approximately one-
fourth that of most other Federal courts of appeals. In each of the
past 2 years, the DC Circuit has cancelled regularly scheduled argument
dates due to lack of pending cases. For several years the court has
experienced a decline in workload in terms of total filings, actions
per active judge, and pending appeals. Almost every metric indicates
the same direction. Indeed, since 2006, when Democrats blocked Mr.
Keisler's nomination, the total number of appeals filed in the DC
Circuit has decreased--decreased--by 12 percent.
According to the Democrats' own standards, and particularly when
there are judicial emergencies in other courts across the country, now
is not the time to confirm another judge to the DC Circuit. It is most
certainly not the time for us to consider confirming a controversial
nominee with a record of extreme views of the law and the Constitution.
Many of my colleagues have discussed these views, so I will limit
myself this morning to one example.
In 2003, while serving as solicitor general of New York, Ms. Halligan
approved and signed a legal brief arguing that handgun manufacturers,
wholesalers, and retailers should be held liable for criminal actions
that individuals commit with those guns. Three years later, in 2006,
Ms. Halligan filed a brief alleging that handgun manufacturers were
guilty of creating a public nuisance--that they, themselves, were
guilty of creating a public nuisance. Such an activist approach is both
bewildering and inconsistent with the original understanding of the
second amendment and the rights under the second amendment that
American citizens enjoy.
In conclusion, as measured by the Democrats' own standards and their
prior actions, now is not the time to confirm another judge to the DC
Circuit, and it is certainly not the time to consider such a
controversial nominee for that important court.
For these reasons, I cannot support Ms. Halligan's nomination, and
urge my colleagues to oppose her confirmation.
Madam President, I yield the floor and I suggest the absence of a
quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. LEE. Madam 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. LEE. I ask unanimous consent that the quorum call be divided
equally.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. LEE. I note the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. KIRK. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Tester). Without objection, it is so
ordered.
Mr. SCHUMER. Reserving the right to object, Mr. President, I believe
we have a set number of minutes left to discuss the nominee, Caitlin
Joan Halligan, which is the subject here?
The PRESIDING OFFICER. The Senator is correct.
Mr. SCHUMER. How much time does the majority have?
The PRESIDING OFFICER. Eight minutes.
Mr. SCHUMER. Mr. President, I ask that the final 8 minutes before we
vote be reserved for that and that the Senator from Illinois be allowed
to speak as in morning business for 5 minutes.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
The Senator from Illinois.
Social Security
Mr. KIRK. Mr. President, I wish to speak as in morning business to
talk about the big issue pending before the Senate, which is the
potential legislation by Republicans or Democrats to cut contributions
to Social Security. I am very worried because in the legislation we
considered last week, we had proposals to cut contributions to Social
Security by $250 billion. This was legislation proposed by Democratic
leaders and then a separate piece of legislation by Republican leaders.
I think that legislation was a mistake on both sides.
We have precious few bipartisan institutions or contacts in this
Senate. Senator Manchin and I--one Democratic and one Republican
Senator, both freshmen--meet every Thursday for lunch. At our Thursday
lunch last week, Senator Manchin initially said: I am having
difficulty. I don't think I am going to be able to vote for the
Democratic bill to cut Social Security contributions.
I said: I join you in that because I am not going to be able to vote
for the Republican bill that cuts Social Security contributions.
So the two of us voted pro-Social Security and against the
legislation before us.
I am very worried that we are forgetting the lessons that are
currently playing out in Europe on this subject. As Margaret Thatcher
said, ``Eventually socialists run out of other people's money.'' The
collapse of European socialism underscores the lesson that you cannot
run a retirement system without contributions.
We know already that the Social Security system is running slightly
in the red. Contributions into the system are going to run $10 billion
behind the cost of honoring benefits to seniors. But under this
legislation we would underfund Social Security by $250 billion. We
would increase the tide of red ink to Social Security by 20 times. I
think that is a mistake.
AARP tells us that Social Security is not a welfare program, it is a
retirement security program paid by the contributions of workers and we
should run this program with the contribution of workers.
Remember, if we make this decision to cut contributions to Social
Security, we replace those contributions with government bonds, but the
government bonds we would ask seniors to trust no longer have a triple-
A credit rating from Standard & Poor's. It is basically asking seniors
to trust us.
When you look at the details of the Democratic bill and the
Republican bill, you see another disturbing trend. The Democratic and
Republican bills both depend on revenue streams that take many years to
repay what is lost to Social Security. Under the Republican bill, there
are promised cuts which could be reversed by a future administration or
Congress. It takes until 2018 to repay the senior citizens what has
been lost in Social Security contributions under the trust fund. Under
the Democratic bill, there was a political tax on millionaires, and it
takes until 2021 to repay seniors.
The message that Senator Manchin and I had, as one Democrat and one
Republican, is, how about not charging seniors? How about not causing a
tide of red ink to Social Security? How about making sure we maintain
contributions to that program? Seniors have enough to worry about right
now. They should not have to worry about the future solvency of Social
Security.
One analyst described how, under the legislation, it requires
temporary borrowing of an additional $240 billion for the Federal
budget. I am worried that kind of borrowing could trigger an earlier
loss of the debt limit of the United States, so we could trigger the
battle we all expect for next January to actually happen--ominously for
the President, prior to the election--if this legislation would pass.
Common sense should prevail, that we should run a retirement security
[[Page S8358]]
system with adequate contributions to maintain benefits, that we should
agree on a bipartisan basis that Social Security is one of the most
successful Federal programs ever signed, that we should say to seniors:
Among all the other worries you have, you should not worry about
Congress underfunding the trust fund for Social Security. We should say
to seniors: We are not replacing solid contributions coming in from
workers with bonds that no longer have a AAA credit rating from
Standard & Poor's.
I urge members of AARP to reach out to their leaders and say: We urge
you to forcefully advocate for maintaining adequate contributions to
Social Security; that we don't think promises of a millionaire's tax
that repays the debts until 2021 or spending cuts that repay the debts
until 2018 are something we can fully trust.
So I urge Members of this body to maintain adequate contributions to
Social Security, to defeat both the Republican and Democratic bills, to
learn the lessons of Europe that we need to maintain a retirement
security system with adequate contributions, and that we should not
sink the Social Security trust fund in a wave of red ink on gimmick
legislation which already would impinge the credit of the United States
to a degree that it should not be impinged any further.
With that I yield the floor, and I thank my senior colleague from New
York.
Ms. COLLINS. Mr. President, I rise today to speak on the nomination
of Caitlin Halligan to be a judge of the U.S. Circuit Court for the
District of Columbia.
I have carefully considered the background of this nominee and
undertaken a full review of her public record as well as the records of
the Judiciary Committee hearings. I have also looked closely at the
actual staffing needs of the court to which she has been nominated.
While my review leads me to conclude that Ms. Halligan is well
qualified, I am not convinced that the workload of the court justifies
filling the seat, and on that basis, I oppose the nomination.
This vacancy has existed since 2005 when then-Judge John Roberts was
elevated to the Supreme Court. In June 2006, President Bush nominated
Peter Keisler to fill the seat. Despite Mr. Keisler's strong
qualifications, Democrats held up his nomination for a total of 918
days; it eventually had to be withdrawn.
Central to their objection to Mr. Keisler's nomination was their
contention that the court's caseload did not justify filling the
vacancy. As expressed by a Democratic Judiciary Committee member during
Mr. Keisler's confirmation hearing and later reiterated by all eight
committee Democrats in a letter to the chairman urging the nomination
be put on hold:
We are putting the cart before the horse here. . . . Here
are the questions that just loom out there. Is there a
genuine need to fill this seat? Has not the workload of the
D.C. Circuit gone down? Should taxpayers be burdened with the
cost of filling that seat? . . . We have been told repeatedly
that to fill this seat would be a waste of taxpayer money and
a shameful triumph of big government. Why then are we
speeding towards confirmation here?
Since that statement, even with this seat still vacant, statistics
from the Administrative Office of the U.S. Courts show that the
caseload of the DC Circuit has actually continued to decrease markedly
over the last several years and that, with a smaller court, more
appeals were terminated during this same period
This decrease is evident in both the total number of appeals filed
and the total number of appeals pending. Specifically, the total number
of appeals filed in the DC Circuit decreased by more than 14 percent
between 2005, when 1,379 appeals were filed, and 2010--the latest
complete year for which statistics are available--when 1,178 appeals
were filed. Meanwhile, with a smaller court, more appeals were
terminated during this period. The total number of appeals pending was
reduced from 1,463 appeals to 1,293 appeals. This is a decrease of
nearly 12 percent.
The shrinking workload is also demonstrated in the per-panel and per-
judge statistics. Filings per panel and filings per judge show a
decline of nearly 7 percent during this period as well. Pending appeals
per panel dropped over 9 percent. Interestingly, the DC Circuit ranks
last among the circuit courts in 2010 in this category. That means it
has the lightest workload per panel.
Given the declining workloads, the Senate should be debating reducing
the staffing for this court, not filling a vacancy. With our massive
deficit, belts being tightened everywhere, and critical vacancies
existing on other Federal courts, why should we spend the resources--
estimated at over $1 million a year--to fill this seat? Why are we
eating up legislative time debating a nominee we likely don't need,
instead of moving forward to nominees for vacancies that have become
judicial emergencies and demand more immediate attention?
It is discouraging to note that now that the candidate for this seat
is a Democratic nominee and not a Republican, all of my friends on the
other side of the aisle seem to have forgotten their concerns about the
caseload, even though the court's own statistics show it has markedly
declined. In fact, when the Senator from Iowa, Mr. Grassley, recently
sought to amend a judicial staffing bill before the Judiciary Committee
this last October to cut a seat on the DC Circuit, Committee Democrats
voted it down.
Mr. President, given the facts, I firmly believe that filling this
vacancy before we determine whether the position is or is not
superfluous to the court's needs, is indeed, as Judiciary Committee
Democrats noted in 2006, ``putting the cart before the horse.'' Until
that determination is made, I cannot support filling this vacancy
regardless of the nominee's qualifications. Consequently, I will oppose
cloture on the nomination.
Mr. HATCH. I rise today in opposition to the nomination of Caitlin
Halligan to the U.S. Court of Appeals for the DC Circuit. I reached
this conclusion after applying the same standard I use for all judicial
nominations. The Senate owes some deference to the President regarding
judicial nominees who are qualified by virtue of their legal experience
and, more importantly, their judicial philosophy. I want to briefly
mention a few of the reasons why this controversial nominee fails to
meet this standard.
One hallmark of an activist judicial philosophy is trying to use the
courts to solve problems or address issues that properly belong in the
legislative branch. Both as solicitor general of New York and in
private practice, Ms. Halligan argued that gun manufacturers should be
held liable for the illegal use of their products. She argued that
illegally possessed handguns are a so-called public nuisance for which
manufacturers should be held responsible. The New York Court of Appeals
rejected this radical theory and properly concluded that such social
problems should be addressed by the legislative or executive branches
rather than the judicial branch.
Undeterred, Ms. Halligan next went to Federal court to challenge the
constitutionality of the Protection of Lawful Commerce in Arms Act.
Congress enacted that statute so that manufacturers would not be held
liable for the illegal use of their products. That measure passed the
House and the Senate by at least a 2-to-1 margin. In this body, 14
Democrats voted for the bill, including 10 who still serve today. As
had the New York Court of Appeals, the U.S. Court of Appeals for the
Second Circuit rejected Ms. Halligan's position, upholding the statute
and dismissing the litigation.
Ms. Halligan has also taken extreme positions regarding the war on
terrorism. I know that liberals do not even want to call it that today,
but the reality is that we remain at war against foreign terrorists
bent on murdering American civilians. Ms. Halligan would give captured
terrorists, who are making war on the United States, access to civilian
courts, a right never before recognized in American history. Ms.
Halligan was a member of a New York City bar committee that issued a
report on the indefinite detention of enemy combatants. This is
particularly important because the DC Circuit, to which Ms. Halligan
has been nominated, is the most important lower court for terrorism
cases. She did not abstain from signing the report, as four other
committee members did, and so its content and conclusions can be
attributed to her.
She argued in that report that the authorization for use of military
force,
[[Page S8359]]
or AUMF, does not authorize long-term detention of enemy combatants and
that alien terrorists should be tried in civilian courts rather than in
military commissions. The Supreme Court and the Obama administration
have since rejected or abandoned such positions. After the Supreme
Court held, in Hamdi v. Rumsfeld, that the AUMF does authorize military
detention of resident aliens, Ms. Halligan coauthored a brief arguing
otherwise. Not until her Judiciary Committee hearing this year did Ms.
Halligan even try to distance herself from these extreme positions,
something that my friends on the other side of the aisle would call a
confirmation conversion if she were a Republican.
Unfortunately, this was not the only example of Ms. Halligan getting
behind novel rights that have no grounding in our Constitution or legal
traditions. Ms. Halligan filed a brief in Roper v. Simmons arguing that
evolving standards of decency today forbid the execution of individuals
who committed murder before the age of 18. This is judicial activism at
its worst, giving judges complete control of the Constitution that they
are supposed to follow. America's Founders insisted that the meaning of
the Constitution does not change until the people change it and that
even judges are bound to follow that meaning. Today, in contrast, the
Supreme Court says that the meaning of the Constitution is evolving and
that judges are in charge of that evolution.
The fact that Ms. Halligan appears to be solidly in that judicial
activist camp is bad enough and is alone grounds to oppose her
nomination. Perhaps sensing that such activism is deeply unpopular
among the American people and their elected representatives, she did an
about-face at her confirmation hearing and said that the Constitution
should be interpreted based on the people's original meaning rather
than on judges' evolving understandings. So it is legitimate to ask
which Ms. Halligan is the real Ms. Halligan--the Ms. Halligan who would
create new rights, while ignoring the clear language of the
Constitution that protects the right to bear arms, or the Ms. Halligan
who at the last minute has become a convert to originalism?
I think her record speaks for itself.
Ms. Halligan also filed a brief in Scheidler v. National Organization
for Women arguing that pro-life protesters should be prosecuted under
the Federal racketeering statute because they somehow commit extortion.
Her argument would require the courts literally to rewrite both the
racketeering statute and the extortion statute and is another example
of Ms. Halligan seeking to pursue her political agenda in the judicial
rather than in the legislative branch. I believe instead that the
political ends do not justify the judicial means and, thankfully, the
Supreme Court voted 8 to 1 to reject her position.
In addition to her troubling record, it is worth noting that the
position to which Ms. Halligan has been nominated hardly fits the
category of a judicial emergency. The Senate has this year already
confirmed nearly 20 percent more judges than the annual average over
the past couple of decades, with, I am sure, more to come. We have paid
particular attention to filling long-term vacancies in jurisdictions
with heavy caseloads. Yet, between 1993 and 2010, annual case filings
in the DC Circuit decreased by twice the percentage that filings
increased in other circuits. The DC Circuit's caseload per judge is
literally one-fourth what it is for other circuits. It has ranked last
for years among all circuits in the number of appeals filed per three-
judge panel, even after one of its seats was transferred to the Ninth
Circuit and even with multiple vacancies. The DC Circuit's caseload is
lower today than when Democrats used this caseload argument to block
the nomination to this court of Peter Keisler, who waited more than 900
days without a committee vote.
As my colleagues know, I do not oppose judicial nominees often or
lightly. While Ms. Halligan appears to be an experienced lawyer and I
am sure is a fine person, those are insufficient qualifications for
judicial service. The most important qualification is her judicial
philosophy, or the kind of judge she would be. The record shows that
she embraces the activist judicial approach that I believe is
incompatible with the power and proper role of judges in our system of
government under a written Constitution. For these and for additional
reasons that my colleagues will discuss further, I cannot support her
appointment.
Mrs. BOXER. Mr. President, I wish to express my support for Caitlin
Halligan, who has been nominated to the Court of Appeals for the DC
Circuit. Ms. Halligan has an impressive background and broad support,
and I urge my colleagues to vote for cloture and allow this nominee to
receive an up-or-down confirmation vote.
Ms. Halligan has had a distinguished career in both the private and
public sectors. She has served as the solicitor general of New York and
as general counsel of the New York County District Attorney's Office.
She has also been a senior appellate lawyer at the nationally
recognized law firm of Weil Gotshal. She has argued five cases before
the Supreme Court, where she also clerked after law school. It is no
wonder the ABA unanimously rated her ``well-qualified''--the highest
ranking to serve on the DC Circuit.
In addition to impressive credentials, Ms. Halligan has broad
support. The National District Attorneys Association and district
attorneys from the State of New York, including Republicans Derek
Champagne, Daniel Donovan, and William Fitzpatrick, support her
nomination. She is also supported by the New York Association of Chiefs
of Police and the New York State Sheriff's Association.
Confirming a well-qualified nominee like Ms. Halligan would also be
another step toward expanding the diversity of our Federal bench.
Today, women hold 30 percent of Federal judicial seats--from district
courts to the Supreme Court--the most at any time in this Nation's
history. While this progress is to be celebrated, these words from
Justice Sandra Day O'Connor remind us there is more to do:
About half of all law graduates today are women, and we
have a tremendous number of qualified women in the country
who are serving as lawyers. So they ought to be represented
on the Court.
I am proud to support the nomination of Ms. Halligan and hope that my
colleagues will join me in voting for cloture today.
Mr. REID. Mr. President, today Republicans filibuster a judicial
nominee whose colleagues call her a ``brilliant legal mind'' with an
``abiding respect for the law.''
This nominee to the U.S. Court of Appeals for the DC Circuit, Caitlin
Joan Halligan, has outstanding credentials and strong support from
across the political spectrum.
She enjoys the support of a bipartisan group of appellate lawyers,
former judges, law enforcement officials, and more than 20 former
Supreme Court clerks. And she has been endorsed by the National
District Attorneys Association, the New York Association of Police
Chiefs and the New York State Sheriffs Association.
She graduated with honors from Princeton and Georgetown University
Law, where she was managing editor of the Georgetown Law Journal. She
served as a law clerk to Judge Patricia Wald on the DC Circuit, the
court to which she was nominated, and to Justice Stephen Breyer on the
Supreme Court.
She has served New York and this Nation well as a public servant for
more than a decade.
Yet Republicans filibustered her nomination.
I ask my colleagues, if this truly exceptional candidate isn't
qualified to be a judge in the United States of America, who is?
In 2005, a bipartisan group of Senators came to an agreement to
protect the Senate as an institution and the right of the minority to
influence debate. Democrats and Republicans averted the so-called
nuclear option by agreeing that the minority's right to block judicial
nominees would be preserved but it would be exercised only in
extraordinary circumstances.
I am concerned that today the Senate is backing away from that
agreement. Ms. Halligan's nomination does not meet the standard of an
extraordinary circumstance that agreement envisioned.
Republicans, now in the minority, will block a talented, experienced
nominee with broad bipartisan support to please a few ideological
extremists.
The PRESIDING OFFICER. The Senator from New York.
[[Page S8360]]
Mr. SCHUMER. Mr. President, I ask unanimous consent to be recognized
for the remainder of the time if no one from the minority side is here
to speak against this nomination.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SCHUMER. Mr. President, I rise this morning in support of the
President's first and only nominee to the U.S. Court of Appeals for the
District of Columbia Circuit.
Caitlin J. Halligan is a nominee any president of any party would be
proud of. I know from speaking to her and from getting to know her over
the 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. 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.
If they do, they must conclude that Caitlin Halligan deserves an up-or-
down vote.
Does the President have to nominate a political conservative to clear
the hurdle? Halligan is clearly a moderate--far more moderate than many
on my side would choose if they were nominating on their own without an
advise-and-consent process. Does the President have to nominate a
lawyer who has practiced law in the shadows, never addressing a major
legal issue of importance to the Nation in her entire career? Because
the only arguments against Caitlin Halligan are ``gotcha'' arguments
that simply take little snippets of what she did in past law practice
representing clients, not her own views, and say ``gotcha.''
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 bipartisan group agreed not to
filibuster any nominees who did not present ``extraordinary
circumstances.''
Now, ``extraordinary circumstances'' was not defined. But my
colleague, Senator Graham, a leader in that Gang of 14 effort, to his
credit, said on the floor at the time--completely reasonably--that it
meant no ideological attacks. Senator Graham said:
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. No one has alleged she does. It is that simple. So if this
body cannot invoke cloture on her nomination today, the Gang of 14
agreement, it would seem to me, would be 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 is a vote that declares the Gang of 14 agreement
null and void. I was not a party to that agreement, but it would be
impossible to deny that it has guided this body's consideration of
judges since 2005 under both Democratic and Republican Presidents. If
Republicans are going to suddenly junk that 6-year armistice, it could
risk throwing the Senate into chaos on judicial nominees. Senate
Republicans seem to want to declare open season for filibusters again--
at least at the court of appeals level. Admittedly, and gladly, things
as of late have gotten much better at the district court level. But the
defeat of Caitlin Halligan would throw into chaos nominations at the
circuit court level for a long time to come.
Any attempt to paint Caitlin Halligan as so far out of the mainstream
that she presents an ``extraordinary circumstance'' is twisting her
record far beyond recognition. Any attempt to do so would make any
nominee, by a Democratic or a Republican President, susceptible to that
unfair charge.
I have always said ideology matters, but I have also said candidates
need only to be mainstream--not too far right, not too far left. I
don't like nominees who are at the extremes, left or right, because
they tend to be ideologues who want to make law not interpret and
follow law. Well, Halligan fits the bill of a moderate, mainstream
nominee precisely, to a ``T.''
Halligan has spent her career in government in both political and
plenty of nonpolitical positions. She has worked as a lawyer's 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--something that might be disputed among
mainstream Members of this body, particularly if they were citizens
picked up on American soil. We just had that debate.
She acknowledged she would act with fealty to text and original
intent in interpreting laws and the Constitution. She acknowledged she
believes the second amendment protects an individual's right to bear
arms, thereby vindicating the Heller case, and she acknowledged that
the eighth amendment protects the constitutionality of the death
penalty.
Some of my colleagues have tried to paint Halligan because she has
filed briefs on behalf of clients, and they say that somehow indicates
she would be an activist judge. First, I wish to point out that she is
not the first nominee to come before the Senate and state that the
views in the briefs she writes of her clients are not her own. Guess
who did it regularly and repeatedly. Now-Chief Justice Roberts.
Did Democrats filibuster Justice Roberts because he did that? Did we
say the views he wrote on behalf of clients had to be attributed to his
own views? Of course not.
I wish to rebut some of the things I heard on this 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. Again, this was a brief filed
on behalf of a client, not representing her own view.
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 abandoned the case and
then charged al-Marri in civilian court--no different than the argument
Halligan was making.
Why are we arguing about whether she deserves an up-or-down vote?
Because, frankly, as with the Supreme Court, this is part of the
attempt of the far right to pull the DC Circuit further and further
away from the mainstream. Many conservatives tend to decry ``liberal
judicial activism.'' But what they really want is judicial activism of
the right. They don't want lawyers to be down the middle and interpret
law; they want to change the way the whole government has operated for
decades through the one unelected body, the article III body, the
judiciary.
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 democracy.
There is not a single question that Halligan adheres to these
principles. She has extensive government experience. She understands
the demands and rolls 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 has listened to her answer an hour of questions in the
committee and read her responses to the 150 questions that were
submitted for the record cannot doubt but that she has an even and
modest temperament and philosophy in her approach to legal questions.
Let me cite 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
[[Page S8361]]
constitutional challenge is presented, but I think that
authority has to be exercised very sparingly and very
carefully.
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. Well, I have sat through a lot of hearings for nominees to
Federal courts of appeals, and I know evasion when I see it. Halligan
was not evasive. Some of the same people who say she lacked candor
still defend Miguel Estrada who didn't answer a single question because
he might come before them as a judge.
She answered questions thoughtfully and forthrightly and explained
the context of any past statements that might have seemed 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 she has
activist views. First, she gave a speech in 2003 on behalf of her boss,
Elliott 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 at the time 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 the committee
she hadn't seen the report and didn't agree with either its content 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 law.
Finally, I wish to say a word about a red herring argument that has
been raised today--that the workload of the DC Circuit is too low to
confirm Halligan. I have expressed this concern, too, and, in fact, in
2008 we voted to take away one of the seats in 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 concern for
nominees of the 11th seat and what was then the 12th seat. Halligan has
been nominated for the 9th seat. There are only 8 members on that court
which now has a roster of 11. The 10th and 11th seats remain vacant. No
one ever until now, on either side of the aisle, has ever argued that
the DC Circuit should have only eight judges.
I wonder, if control of the body changes, which I don't think it
will, or we get a Republican President, which I don't think we will,
how quickly our colleagues on the other side of the aisle will abandon
that foolish and specious argument.
I am concerned that we are hearing it now for the first time because
the current makeup of the court happens to have five Republican
appointees and three Democratic nominees.
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. SCHUMER. Mr. President, I ask unanimous consent that I be given
1\1/2\ more minutes to finish this point.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SCHUMER. 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. We did not hear a peep out of the other
side that that was too low. Yet today there are 161 cases per judge.
With Halligan's confirmation, it would go down to 143--far more than
the 121 when all my colleagues on the other side of the aisle voted for
Mr. Griffith, the Republican nominee of President Bush. So there is no
reason to argue about caseload.
The fact is, if we cannot confirm Halligan, this will not go down as
a vote about caseload, this will be recorded as a new bar for nominees.
In conclusion, 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 am sure she could not have imagined that
someday she would be the topic of a debate in the U.S. 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 today, and I will be proud to cast my vote for
cloture on Caitlin Halligan's nomination.
I thank the Chair.
Cloture Motion
The PRESIDING OFFICER. Under the previous order, pursuant to rule
XXII, the Chair lays before the Senate the pending cloture motion,
which the clerk will state.
The bill clerk read as follows:
Cloture Motion
We, the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
do hereby move to bring to a close debate on the nomination
of Caitlin Joan Halligan, of New York, to be United States
Circuit Judge for the District of Columbia Circuit.
Harry Reid, Patrick J. Leahy, Charles E. Schumer,
Christopher A. Coons, Amy Klobuchar, Al Franken,
Richard Blumenthal, Sheldon Whitehouse, Richard J.
Durbin, Dianne Feinstein, Herb Kohl, Kirsten E.
Gillibrand, Tom Udall, Ron Wyden, Robert P. Casey, Jr.,
Sherrod Brown, Jeanne Shaheen.
The PRESIDING OFFICER. By unanimous consent, the mandatory quorum
call has been waived.
The question is, Is it the sense of the Senate that debate on the
nomination of Caitlin Joan Halligan, of New York, to be United States
Circuit Judge for the District of Columbia Circuit, shall be brought to
a close?
The yeas and nays are mandatory under the rule.
The clerk will call the roll.
The bill clerk called the roll.
Mr. HATCH (when his name was called). Present.
The yeas and nays resulted--yeas 54, nays 45, as follows:
[Rollcall Vote No. 222 Ex.]
YEAS -- 54
Akaka
Baucus
Begich
Bennet
Bingaman
Blumenthal
Boxer
Brown (OH)
Cantwell
Cardin
Carper
Casey
Conrad
Coons
Durbin
Feinstein
Franken
Gillibrand
Hagan
Harkin
Inouye
Johnson (SD)
Kerry
Klobuchar
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Manchin
McCaskill
Menendez
Merkley
Mikulski
Murkowski
Murray
Nelson (NE)
Nelson (FL)
Pryor
Reed
Reid
Rockefeller
Sanders
Schumer
Shaheen
Stabenow
Tester
Udall (CO)
Udall (NM)
Warner
Webb
Whitehouse
Wyden
NAYS--45
Alexander
Ayotte
Barrasso
Blunt
Boozman
Brown (MA)
Burr
Chambliss
Coats
Coburn
Cochran
Collins
Corker
Cornyn
Crapo
DeMint
Enzi
Graham
Grassley
Heller
Hoeven
Hutchison
Inhofe
Isakson
Johanns
Johnson (WI)
Kirk
Kyl
Lee
Lugar
McCain
McConnell
Moran
Paul
Portman
Risch
Roberts
Rubio
Sessions
Shelby
Snowe
Thune
Toomey
Vitter
Wicker
ANSWERED ``PRESENT''--1
Hatch
The PRESIDING OFFICER. On this vote, the yeas are 54, the nays are
45, and 1 Senator responded ``present.''
Three-fifths of the Senators duly chosen and sworn having not voted
in the affirmative, the motion is rejected.
____________________