[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.
____________________