[Congressional Record Volume 159, Number 31 (Tuesday, March 5, 2013)]
[Senate]
[Pages S1104-S1107]
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

  Mr. LEAHY. Madam President, I ask unanimous consent that the Senate 
proceed to executive session to resume consideration of Executive 
Calendar No. 13, the nomination of Caitlin Halligan.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report the nomination.
  The 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 PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Madam President, tomorrow the Senate will have an 
opportunity to correct itself and complete action on the nomination of 
Caitlin Halligan to the DC Circuit. She was first nominated to a 
vacancy on the court in September 2010, almost 30 months ago. No one 
who knows her, no one who is familiar with her outstanding legal career 
can be anything but impressed by her experience, her intelligence, and 
her integrity. Hers is a legal career which rivals that of the DC 
Circuit judge she was nominated to succeed.
  I might mention that the judge she was nominated to succeed was John 
Roberts, who served on the DC Circuit. He is now Chief Justice of the 
United States. I voted for the confirmation of John Roberts to the DC 
Circuit. I voted for the confirmation of John Roberts to the Supreme 
Court. He and I do not share the same judicial philosophy or

[[Page S1105]]

political party, but I voted for him because he was well qualified. I 
did not agree with every position he had taken or argument he made as a 
high-level lawyer in several Republican administrations, but I 
supported his nomination to the DC Circuit because of his legal 
excellence. Caitlin Halligan is also well qualified. Caitlin Halligan 
is as well qualified as John Roberts, whom I voted for, and her 
nomination deserves a vote. John Roberts was confirmed unanimously to 
the DC Circuit on the day the Judiciary Committee completed 
consideration of his nomination and reported it to the Senate. It is 
time for the Senate to consider Caitlin Halligan's nomination on her 
merits and end the filibuster that has extended over 2 years.
  What I am saying is that if we want to be honest in the Senate, we 
have to apply the same standard to her that we applied to the 
nomination of John Roberts. After being nominated and renominated four 
times over the course of the last 3 years, it is time for the Senate to 
accord this outstanding woman debate and vote on the merits she 
deserves.
  Caitlin Halligan is a highly regarded appellate advocate, with the 
kind of impeccable credentials in both public service and private 
practice that make her unquestionably qualified to serve on the DC 
Circuit. In fact, the ABA Standing Committee on the Federal Judiciary 
reviewed her nomination and gave her their highest possible rating. The 
judge for whom she clerked on the DC Circuit, former chief judge Pat 
Wald, urges her confirmation. Those who have worked with her all praise 
her. We have not heard a single negative comment on her legal ability, 
judgment, character, ethics, or her temperament. By the standard we 
have used for nominees of Republican Presidents, there is no question 
that Caitlin Halligan should be confirmed and this ill-advised 
filibuster should end. Earlier this month the Senate ended a filibuster 
against the nomination of Robert Bacharach and he was confirmed 
unanimously to the Tenth Circuit. We finally were allowed to complete 
action on the nomination of William Kayatta to the First Circuit. So, 
too, the Senate should now reconsider its prior treatment of Caitlin 
Halligan and confirm her nomination.
  She is a stellar candidate with broad bipartisan support. She is 
supported by law enforcement, with whom she worked closely while 
serving as a chief appellate lawyer in the State of New York and as 
general counsel for the Manhattan district attorney. That includes the 
support of New York City police commissioner, Ray Kelly; the New York 
Association of Chiefs of Police; and the National District Attorneys 
Association.
  Carter Phillips, who served as an assistant to the Solicitor General 
during the Reagan administration, describes her as one of those 
extremely smart, thoughtful, measured, and effective advocates and 
concluded that she would be a first-rate judge. She has the strong 
support of the New York Women in Law Enforcement, the National Center 
for Women and Policing, the National Conference of Women's Bar 
Associations, the Women's Bar Association of the District of Columbia, 
and the U.S. Women's Chamber of Commerce.
  I ask unanimous consent to have printed in the Record a list of 
letters in support for Ms. Halligan at the conclusion of my remarks.
  I have been here 38 years and occasionally see things that really 
disappoint me. This is one where I see that narrow special interest 
groups seek to misrepresent her as a partisan or ideological crusader. 
She is not. Everybody who knows her, everybody who has dealt with her, 
Republican and Democratic alike, says she is not. What they do say is 
that she is a brilliant lawyer who knows the difference between the 
roles of legal advocate and judge. She will be a fair, impartial, and 
outstanding judge.
  To oppose her for her work as an advocate would be like saying: We 
can't have this particular nominee be a judge because the nominee was 
appointed to defend a murderer and we are against murder. No. We are 
against the rule of law. We are against everybody who appears before a 
court having good representation whether we agree with their position 
or not. These kinds of arguments undermine our whole legal system.
  While serving as the solicitor general for the State of New York, she 
was an advocate, representing the interests of her client. How often 
have we heard Republican Senators say that what lawyers do and say in 
legal proceedings should not be used to undermine their judicial 
nominations? Chief Justice Roberts himself has made that point. As an 
attorney, Chief Justice Roberts advocated for positions where I 
disagreed with him, but he was supporting the position of the people 
for whom he was an advocate. At his confirmation hearing to join the 
United States Supreme Court, Judge Roberts said:

       [I]t's a tradition of the American Bar that goes back 
     before the founding of the country that lawyers are not 
     identified with the positions of their clients. The most 
     famous example probably was John Adams, who represented the 
     British soldiers charged in the Boston Massacre. He did that 
     for a reason, because he wanted to show that the Revolution 
     in which he was involved was not about overturning the rule 
     of law, it was about vindicating the rule of law.
       Our Founders thought that they were not being given their 
     rights under the British system to which they were entitled, 
     and by representing the British soldiers, he helped show that 
     what they were about was defending the rule of law, not 
     undermining it, and that principle, that you don't 
     identify the lawyer with the particular views of the 
     client, or the views that the lawyer advances on behalf of 
     the client, is critical to the fair administration of 
     justice.

  That has always been our tradition--at least until now. This litmus 
test that would disqualify nominees because as lawyers they represented 
a legal position in a case is dangerous and wrong. Almost every nominee 
who had been a practicing lawyer would be disqualified by such a test. 
By the standard that is being applied to Caitlin Halligan, John Roberts 
could not have been confirmed to serve as a Federal judge let alone as 
the Chief Justice of the United States.
  Yet some have justified their filibuster because she was directed by 
the New York attorney general to draft an amicus brief challenging a 
Federal law that protected gun manufacturers from liability for crimes 
committed with their products. As New York's solicitor general she 
filed a brief in support of a class action lawsuit against anti-choice 
clinic protestors under the Hobbs Act. She filed a brief on behalf of 
New York in support of a lower court's decision to permit back pay to 
undocumented employees whose employers were violating Federal law. She 
filed a brief on behalf of New York and other States in support of the 
University of Michigan's affirmative action program. In all of these 
cases, she was representing her client, the State of New York.
  Note that her critics are not arguing that she was a bad lawyer. In 
essence, what they are contending is that because they disagree with 
the legal positions taken on behalf of her client, she should not get 
an up-or-down vote. That is wrong.
  When I voted for Chief Justice Roberts, I remember a number of 
Republicans told me, of course, that is the only thing you should do 
because you think he is qualified. Now I have Republicans who tell me 
they feel she is well qualified, but this special interest group or 
that special interest group is opposed to her. She took positions with 
which they disagree. That is not the issue. Is she qualified? Did she 
stand up for her clients the way an attorney should in our adversarial 
system?
  Her public service in the State of New York is commendable, and no 
reason to filibuster this nomination. Vote yes or vote no on this 
nomination. Voting to block it from coming to a vote is saying: I don't 
have the courage to stand up and vote yes or no; I want to vote maybe. 
It never comes to a vote if we filibuster it. I may vote maybe so I 
don't have to explain to people that she is far more qualified than 
people we voted for who were nominated by Republican Presidents. I 
didn't vote against her; I didn't vote for her; I voted maybe.
  That is not the way it should be. Our legal system is an adversarial 
system, predicated upon legal advocacy for both sides. There is a 
difference between serving as a legal advocate and as an impartial 
judge. She knows that. She is a woman of integrity. No one who fairly 
reviews her nomination has any reason to doubt her commitment to serve 
as an impartial judge.

[[Page S1106]]

  I always said when I practiced law that I didn't want to walk into a 
courtroom and say the case is going be determined by whether I was 
plaintiff or defendant, Republican or Democratic, but that the case 
would be determined on the facts and the law.
  We have been fortunate in Vermont that we have had many judges like 
this, judges who were appointed by Republican Governors, judges 
appointed by Democratic Governors, Federal judges appointed by 
Republican Presidents, Federal judges appointed by Democratic 
Presidents. In Vermont, we have been fortunate because no matter what 
their positions have been before, they turned out to be impartial 
judges, which is what this good woman will be.
  In fact, it is not only wrong but dangerous to attribute the legal 
position she took in representing her client, the State of New York, to 
her personally and then take the additional leap--and it is a huge 
leap--to contend that her personal views will override her commitment 
to evenhandedly apply the law.
  John Adams, one of our most revered Founders, wrote that his 
representation of the British soldiers in the controversial case 
regarding the Boston Massacre was ``one of the most gallant, generous, 
manly and disinterested actions of my whole life, and one of the best 
pieces of service I ever rendered my country.'' That is our tradition. 
The Senate should end this filibuster and vote to confirm a woman who 
has ably served as a public official representing the State of New York 
and the district attorney of Manhattan.
  The other justification Republican Senators used 2 years ago to 
justify their filibuster is gone. Some contended that the caseload in 
the DC Circuit was not sufficiently heavy to justify the appointment. 
There are now four vacancies on the DC Circuit. The vacancies have 
doubled during the last 2 years. The bench is more than one-third 
empty. This is reason enough for Senators to reconsider their earlier 
votes and end this filibuster.
  The Senate responded to this caseload concern in 2008 when we agreed 
to decrease the number of DC Circuit judgeships from 12 to 11. Caitlin 
Halligan is nominated to fill the 8th seat on the DC Circuit, not the 
11th. Just a few years ago when the DC Circuit caseload per active 
judge was lower than it is now, all the Republican Senators voted to 
confirm nominees to fill the 9th seat, the 10th seat twice, and the 
11th seat on this court. In fact, the DC Circuit caseload for active 
judges increased 50 percent from 2005--50 percent from when the Senate 
confirmed the nominee to fill the 11th seat on the DC Circuit bench. 
The caseload on the DC Circuit is also greater than the caseload on the 
Tenth Circuit, to which the Senate just confirmed Judge Robert 
Bacharach of Oklahoma last week.
  In her recent column in The Washington Post, Judge Wald explains why 
the work of the DC Circuit, with its unique jurisdiction over complex 
regulatory cases is different and more onerous than in other circuits 
and why the court needs to have its vacancies filled. She wrote:

       The number of pending cases per judge has grown from 119 in 
     2005 to 188 today. A great many of these are not easy cases. 
     The D.C. Circuit hears the most complex, time-consuming, 
     labyrinthine disputes over regulations with the greatest 
     impact on ordinary Americans' lives: clean air and water 
     regulations, nuclear plant safety, health-care reform, 
     insider trading and more. These cases can require thousands 
     of hours of preparation by the judges, often consuming days 
     of argument, involving hundreds of parties and interveners, 
     and necessitating dozens of briefs and thousands of pages of 
     record--all of which culminates in lengthy, technically 
     intricate legal opinions.

  She also notes: ``The D.C. Circuit has 11 judgeships but only seven 
active judges. There is cause for extreme concern that Congress is 
systematically denying the court the human resources it needs to carry 
out its weighty mandates.'' I ask that a copy of her article be 
included in the Record at this point.
  I urge all those who have said filibusters on judicial nominations 
are unconstitutional to end this filibuster. I urge those who have said 
here on this floor that they would never support a filibuster of a 
judicial nomination to end this filibuster. I urge those who said they 
would filibuster only in extraordinary circumstances to end this 
filibuster. I urge all those who care about the judiciary and the 
administration of justice, the Senate, and the American people to come 
forward and end this filibuster.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                    Letters of Support for Halligan

       February 14, 2011--Derek Champagne, Franklin County 
     District Attorney
       February 16, 2011--William Fitzpatrick, Onondaga County 
     District Attorney
       February 22, 2011--Randy Mastro, Gibson Dunn
       February 25, 2011--Daniel Donovan, Jr., Richmond County 
     District Attorney
       February 28, 2011--Chauncy Parker, Director of New York/New 
     Jersey High Intensity Drug Trafficking Area program
       February 28, 2011--23 Former United States Supreme Court 
     Clerkship Colleagues
       March 4, 2011--Cyrus Vance, Jr., New York County District 
     Attorney
       March 4, 2011--Joint Letter from 21 lawyers (Clifford 
     Sloan, Sri Srinivasan, Miguel Estrada, Carter Phillips, Seth 
     Waxman, Walter Dillinger, David Frederick, Andrew Levander, 
     Richard Davis, Michele Hirshman, Dietrich Snell, Paul Smith, 
     Patricia Ann Millet, Kathleen Sullivan, Thomas Brunner, Mier 
     Feder, Evan Tager, Philip Howard, Ira Millstein, Roy Reardon, 
     Michael H. Gottesman)
       March 4, 2011--Judith S. Kaye, former Chief Judge of the 
     New York State Court of Appeals
       March 23, 2011--Robert Morgenthau, Wachtell, Lipton, Rosen 
     & Katz
       April 22, 2011--Derek Champagne, President, District 
     Attorney's Association of the State of New York
       April 27, 2011--John Grebert, New York Association of 
     Chiefs of Police
       May 2, 2011--Peter Kehoe, Executive Director, New York 
     State Sheriff's Association
       May 26, 2011--Raymond Kelly, Police Commissioner, City of 
     New York
       May 31, 2011--New York Women in Law Enforcement
       June 2, 2011--James Reams and Scott Burns, National 
     District Attorneys Association
       June 8, 2011--National Center for Women and Policing
       June 16, 2011--Monica Parham, Women's Bar Association of 
     the District of Columbia
       June 23, 2011--Mary E. Sharp, National Conference of 
     Women's Bar Associations
       June 28, 2011--Margot Dorfman, U.S. Women's Chamber of 
     Commerce
       November 15, 2011--Joint letter from 107 women law 
     professors (Kerry Abrams, Michelle Adams, Jane Aiken, Adjoa 
     Aiyetoro, Judith Areen, Barbara Black, Barbara Atwood, 
     Barbara Babcock, Heather Baxter, Vivian Berger, Francesca 
     Bignami, Tamar Birckhead, Catherine Brooks, Stacy Brustin, 
     Sherri Burr, Stacy Caplow, Caroline Davidson, Elizabeth 
     DeCoux, Christine Desan, Laura Dickinson, Ariela Dubler, 
     Heather Elliott, Lyn Entzeroth, Cynthia Estlund, Christine 
     Galbraith, Abbe Gluck, Emily Waldman, Suzanne Goldberg, 
     Risa Goluboff, Sara Gordon, Sarah Gotschall, Cynthia 
     Bowman, Ariela Gross, Phoebe Haddon, Valerie Hans, Rachel 
     Harmon, Melissa Hart, Nancy Hauserman, Carrie Hempel, 
     Lynne Henderson, Laura Hines, Candice Hoke, Sara Jacobson, 
     Dawn Johnsen, Olatunde Johnson, Deborah Merritt, Anne 
     O'Connell, Pamela Karlan, Ellen Katz, Amalia Kessler, 
     Eleanor Kinney, Heidi Kitrosser, Catherine Kelin, Kristine 
     Knaplund, Maureen Laflin, Mary LaFrance, Robin Lenhardt, 
     Odette Lienau, Nancy Loeb, Joan Heminway, Solangel 
     Maldonado, Sheila Maloney, Maya Manian, Jenny Martinez, 
     Mari Matsuda, Margaret McCormick, Ann McGinley, M. Isabel 
     Medina, Carrie Menkel-Meadow, Gillian Metzger, Binny 
     Miller, Nancy Morawetz, Tamara Packard, Kimani Paul-Emile, 
     Katharina Pistor, Ann Powers, Nancy Rapoport, Kalyani 
     Robbins, Julie O'Sullivan, Shelley Saxer, Erin Ryan, Liz 
     Cole, Carol Sanger, Margaret Satterthwaite, Lisa Schultz 
     Bressman, Diana Sclar, Elizabeth Scott, Ilene Seidman, 
     Laurie Shanks, Katherine Sheehan, Jodi Short, Florence 
     Shu-Acquaye, Jessica Silbey, Michelle Simon, Charlene 
     Smith, Joan Steinman, Drucilla Stender Ramey, Beth 
     Stephens, Nomi Stolzenberg, Maura Strassberg, Nadine 
     Strossen, Ellen Taylor, Penny Venetis, Valerie Vollmar, 
     Rachel Vorspan, Candace Zierdt, Diane Zimmerman)
       December 1, 2011--Albert M. Rosenblatt, retired Judge, NY 
     Court of Appeals
       December 1, 2011--Linda Slucker, President, National 
     Council of Jewish Women
       December 5, 2011--Nancy Duff and Marcia Greenberger, Co-
     Presidents, National Women's Law Center
       December 5, 2011--Wade Henderson, President and CEO, The 
     Leadership Conference on Civil and Human Rights
       December 5, 2011--Gregory S. Smith, President, Bar 
     Association of DC
       March 1, 2013--Doug Kendall, President, Constitutional 
     Accountability Center
       March 4, 2013--Wade Henderson, President and CEO, The 
     Leadership Conference on Civil and Human Rights
       March 4, 2013--Sam A. Cabral, International President, 
     International Union of Police Associations.

[[Page S1107]]

     
                                  ____
               [From The Washington Post, Feb. 28, 2013]

               Senate Must Act on Appeals Court Vacancies

                         (By Patricia M. Wald)

       Pending before the Senate are nominations to fill two of 
     the four vacant judgeships on the U. S. Court of Appeals for 
     the District of Columbia Circuit. This court has exclusive 
     jurisdiction over many vital national security challenges and 
     hears the bulk of appeals from the major regulatory agencies 
     of the federal government. Aside from the U.S. Supreme Court, 
     it resolves more constitutional questions involving 
     separation of powers and executive prerogatives than any 
     court in the country.
       The D.C. Circuit has 11 judgeships but only seven active 
     judges. There is cause for extreme concern that Congress is 
     systematically denying the court the human resources it needs 
     to carry out its weighty mandates.
       The court's vacancies date to 2005, and it has not received 
     a new appointment since 2006. The number of pending cases per 
     judge has grown from 119 in 2005 to 188 today. A great many 
     of these are not easy cases. The D.C. Circuit hears the most 
     complex, time-consuming, labyrinthine disputes over 
     regulations with the greatest impact on ordinary Americans' 
     lives: clean air and water regulations, nuclear plant safety, 
     healthcare reform issues, insider trading and more. These 
     cases can require thousands of hours of preparation by the 
     judges, often consuming days of argument, involving hundreds 
     of parties and interveners, and necessitating dozens of 
     briefs and thousands of pages of record--all of which 
     culminates in lengthy, technically intricate legal opinions.
       I served on the D.C. Circuit for more than 20 years and as 
     its chief judge for almost five. My colleagues and I worked 
     as steadily and intensively as judges on other circuits even 
     if they may have heard more cases. The nature of the D.C. 
     Circuit's caseload is what sets it apart from other courts. 
     The U.S. Judicial Conference reviews this caseload 
     periodically and makes recommendations to Congress about the 
     court's structure. In 2009, the conference recommended, based 
     on its review, that the circuit's 12th judgeship be 
     eliminated. This apolitical process is the proper way to 
     determine the circuit's needs, rather than in the more highly 
     charged context of individual confirmations.
       During my two-decade tenure, 11 active judges were sitting 
     a majority of the time; today, the court has only 64 percent 
     of its authorized active judges. This precipitous decline 
     manifests in the way the court operates. And while the D.C. 
     Circuit has five senior judges, they may opt out of the most 
     complex regulatory cases and do not sit en banc. They also 
     choose the periods during which they will sit, which can 
     affect the randomization of assignment of judges to cases.
       There is, moreover, a subtle constitutional dynamic at work 
     here: The president nominates and the Senate confirms federal 
     judges for life. While some presidents may not encounter any 
     vacancies during their administration, over time the 
     constitutional schemata ensures that the makeup of courts 
     reflects the choices of changing presidents and the ``advise 
     and consent'' of changing Senates. Since the circuit courts' 
     structure was established in 1948, President Obama is the 
     first president not to have a single judge confirmed to the 
     D.C. Circuit during his first full term. The constitutional 
     system of nomination and confirmation can work only if there 
     is good faith on the part of both the president and the 
     Senate to move qualified nominees along, rather than 
     withholding consent for political reasons. I recall my own 
     difficult confirmation 35 years ago as the first female judge 
     on the circuit; eminent senators such as Barry Goldwater, 
     Thad Cochran and Alan Simpson voted to confirm me regardless 
     of differences in party or general political philosophy.
       The two D.C. Circuit nominees before the Senate are 
     exceedingly well qualified. Caitlin Halligan served as my law 
     clerk during the 1995-96 term, working on cases involving the 
     Department of Health and Human Services, the Immigration and 
     Naturalization Service, the Federal Communications Commission 
     and diverse other topics. She later clerked for Supreme Court 
     Justice Stephen Breyer. She also served as New York solicitor 
     general and general counsel for the Manhattan district 
     attorney's office, as well as being a partner in a major law 
     firm. The other nominee, Sri Srinivasan, has similarly 
     impressive credentials and a reputation that surely merits 
     prompt and serious consideration of his nomination.
       There is a tradition in the D.C. Circuit of spirited 
     differences among judges on the most important legal issues 
     of our time. My experience, however, was that deliberations 
     generally focused on the legal and real-world consequences of 
     decisions and reflected a premium on rational thinking and 
     intellectual prowess, not personal philosophy or policy 
     preferences. It is in that vein that I urge the Senate to 
     confirm the two pending nominations to the D.C. Circuit, so 
     that this eminent court can live up to its full potential in 
     our country's judicial work.

  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. I ask that the colloquy between the distinguished Senator 
from Tennessee and myself be as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________