[Congressional Record Volume 159, Number 31 (Tuesday, March 5, 2013)]
[Senate]
[Pages S1098-S1099]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     NOMINATION OF CAITLIN HALLIGAN

  Mr. DURBIN. Mr. President, this week the Senate is going to have an 
opportunity to confirm the nomination of Caitlin Halligan to serve on 
the Court of Appeals for the DC Circuit. In doing so, we can correct a 
mistake the Senate made in the last Congress.
  Ms. Halligan is an extraordinarily well-qualified nominee. She has 
the intellect, experience, temperament to be an outstanding Federal 
appellate judge.
  On December 6, 2011, Caitlin Halligan's nomination was stopped by a 
filibuster by Republican Senators. Forty-five Republicans voted against 
the cloture motion on her nomination, thus denying Ms. Halligan an up-
or-down vote. That killed her nomination for that Congress.
  She has now been renominated in this Congress for the DC Circuit, and 
the court needs her. Right now there are only seven active status 
judges on the DC Circuit. There are supposed to be 11. Four seats are 
vacant, including one vacancy that opened just last month. This is 
untenable.
  Retired DC Circuit Judge Patricia Wald has served as chief judge of 
the circuit for 5 years. She wrote in the Washington Post last month 
that:

       There is cause for extreme concern that Congress is 
     systematically denying the court the human resources it needs 
     to carry out its weighty mandates.

  It is time to address this vacancy situation by giving Ms. Halligan 
an up-or-down vote and confirming her nomination. She is eminently 
qualified. She graduated from Princeton University and the Georgetown 
University School of Law where she served as managing editor of the law 
review. She clerked for Supreme Court Justice Stephen Breyer. She 
served for 7 years as solicitor general for the State of New York, 
representing that State in a broad range of litigation. She currently 
serves as general counsel at the New York County district attorney's 
office. She has argued five cases before the U.S. Supreme Court and 
served as counsel in dozens more cases in that same Court. The American 
Bar Association has given her a unanimous ``well-qualified'' rating to 
serve on the Federal bench.
  Ms. Halligan's legal views are well within the political mainstream. 
She has received widespread support from across the political spectrum. 
For example, the National District Attorneys Association, the 
prosecutors, said she ``would be an outstanding addition'' to the DC 
Circuit. She also has the support of law enforcement organizations and 
prominent conservative lawyers.
  There is simply nothing in her background that constitutes the 
``extraordinary circumstances'' that the so-called Gang of 14 said we 
are supposed to use as a standard to justify a filibuster. There are 
no--repeat no--legitimate questions about Ms. Halligan's competence or 
ethics or temperament or ideology or fitness to serve on the bench. All 
she has done throughout her career is serve as an excellent lawyer on 
behalf of her clients.
  When Ms. Halligan was filibustered in 2011, some of my Republican 
colleagues cited two main arguments against her. First, they claimed 
the DC Circuit didn't need another judge since they could handle the 
workload with eight judges. The DC Circuit may have had eight judges in 
2011, but now there are only seven, so that argument doesn't hold.
  Second, Republicans claim that when Ms. Halligan was solicitor 
general of New York, she advocated positions in litigations that they, 
the Republicans, disagreed with. Is that the standard, that a lawyer 
represented a client with a position that might not be the lawyer's 
personal position or a Senator's personal position? It has been a few 
years since I represented clients, but I believe that under our system 
of legal representation, that is not the standard; that lawyers must 
only represent those people they agree with.
  In our system of law, the system where the scales of justice are held 
by the lady with the blindfold, we are supposed to give justice to both 
sides and hope at the end of the day the system serves us.
  Ms. Halligan advocated positions at the direction of her client, 
which happened to be the State of New York. In the American legal 
tradition, lawyers are not supposed to be held to the views of their 
clients.
  As Chief Justice John Roberts said during his confirmation hearing--
and I remember this:

       It is a basic principle in our system that lawyers 
     represent clients and you do not ascribe the position of a 
     client to the lawyer. It's a position that goes back to John 
     Adams and the Revolution.

  Those who read the book about John Adams often wonder how this man 
became President of the United States

[[Page S1099]]

after representing British soldiers at a massacre in the city of 
Boston.
  Ms. Halligan should not be filibustered because she represented 
clients with whom some Senators don't always agree.
  The bottom line is this: Our country needs excellent judges serving 
on the Federal bench. If qualified mainstream judicial nominees cannot 
be considered fairly by the Senate on their merits, then good lawyers 
are going to stop putting their name in for consideration. Maybe that 
is the ultimate goal on the other side by some of the Senators who 
object to Ms. Halligan.
  Why would a top-notch lawyer volunteer to go through a long, 
excruciating judicial confirmation if the lawyer is only going to be 
filibustered at the end for reasons that don't have a thing to do with 
their qualifications? We are going to end up with a Federal bench that 
is either empty or lacks the excellence we should require.
  Caitlin Halligan deserves an up-or-down vote on the merits. The 
Senate made a mistake in denying her that vote in 2011. Let's correct 
that mistake this week. She has clearly demonstrated she can serve the 
DC Circuit with distinction. She deserves that chance on the merits.
  I yield the floor and 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.
  The ACTING PRESIDENT pro tempore. The Senator from Tennessee.
  Mr. ALEXANDER. 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. ALEXANDER. Mr. President, I ask unanimous consent to speak for 10 
minutes and ask that the Chair let me know when 9 minutes has elapsed.
  The ACTING PRESIDENT pro tempore. The Chair will do so.

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