[Congressional Record Volume 159, Number 32 (Wednesday, March 6, 2013)]
[Senate]
[Pages S1138-S1146]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       RESERVATION OF LEADER TIME

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
leadership time is reserved.
  Mr. DURBIN. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. DURBIN. Mr. President, the issue before us is Caitlin Halligan's 
nomination for the DC Circuit Court. I spoke yesterday in support of 
her nomination. It is unfortunate she is going to be forced to face a 
filibuster; in other words, that the Republicans are going to insist on 
a 60-vote margin for her approval. That is unfortunate because we have 
tried in the beginning of this Senate session to avoid this kind of 
filibuster confrontation.
  In the last several years, we have had over 400 filibusters, a 
recordbreaking number of filibusters in the Senate. What that means is 
the ordinary business of the Senate has been stopped 400 times, when 
those who were trying to bring up a nomination or bill or amendment 
faced a filibuster which required literally stretching the vote out 
over days and sometimes even over 1 week. That is unnecessary. It is 
frustrating as well.
  There are a lot of things we need to do and a lot of issues we need 
to face. I am not afraid of taking on controversial votes on the floor. 
I think that was part of the job assignment coming here. I quoted many 
times my late friend, my colleague in the House, Mike Synar of 
Oklahoma, who used to get right in the face of his colleagues at the 
Democratic caucus when they complained about controversial votes on the 
floor and he said: If you don't want to fight fires, don't be a 
firefighter. If you don't want to vote on controversial issues, don't 
run for Congress. That is what this job is about.
  I agree with that. As painful as some of these votes have been for me 
and others, we should never use that as an excuse for not tackling the 
important issues of our time. But this has become routine now--routine 
filibusters, trying to stop the Senate time and time again. What is 
particularly insidious about this strategy on this nominee is she is an 
extraordinarily well-qualified person. ``Unanimously well qualified,'' 
that is the rating she received from the American Bar Association. When 
we look at her resume and the things she has done, she stands out as 
not only an excellent candidate for DC Circuit but one of the best we 
have had for any judicial position. She is being stopped by the 
Republicans.
  What is their argument? She was the solicitor general for the State 
of New York. The solicitor general is the hired attorney for a client 
known as the State of New York. So many times she was sent into court 
to argue a position that had been taken by the State or by the 
Governor, and she did her job as their counsel, to argue their position 
as convincingly as possible. That is what lawyers do every day in 
courtrooms all across America.
  Back in the day when I practiced law, I didn't measure every client 
who came through the door to ask: Do I agree with every position my 
client has taken? Of course not. The belief is in our system of justice 
both sides deserve a voice in the courtroom and both sides, doing their 
best, give justice an opportunity. That is what Caitlin Halligan did as 
the solicitor general for the State of New York.
  Listen to this. One of the arguments being made against her was that 
while she was solicitor general she served on a bar committee that 
issued a report that favored using article III courts for the 
prosecution of terrorists. Article III courts are the ordinary criminal 
courts of the land under our Constitution. The report argued that 
position. Many Republicans take an opposite position, that anyone 
accused of terrorism should be tried in a military tribunal, not an 
ordinary criminal court. They have held that position. They argue that 
position. They get red in the face saying that is the only way to take 
care of terrorists and they ignore reality.
  The reality is, since 9/11, President Bush, as well as President 
Obama, had a choice between prosecuting terrorists in article III 
courts, the criminal courts or in military tribunals. In over 400 
cases, they successfully, both Presidents, chose to prosecute accused 
terrorists in the article III courts--successfully. In only five 
cases--I believe it is five--have they used military tribunals. The 
overwhelming evidence is that the article III criminal courts have 
worked well. Prosecutions have been successful. This argument: Oh, if 
you have to read Miranda rights to an accused terrorist, we will never 
be able to prosecute them, they will lawyer up in a hurry. It doesn't 
quite work that way. In fact, we found the opposite to be true. When 
many of these folks with connections through terrorism are taken 
through the ordinary criminal process, they end up being more 
cooperative than through a military tribunal. That is a fact. A 
President and the Attorney General have to make that decision. So here 
is Caitlin Halligan, solicitor general for the State of New York, whose 
name is on a bar committee report favoring the use of article III 
courts, which overwhelmingly President Bush and President Obama decided 
to do, and now the Republicans say that disqualifies her, that 
disqualifies her from serving on the DC Circuit Court.
  It also is ridiculous position to argue that because an attorney 
argues a point of view in a case, that is her own point of view. I 
refer my colleagues to the testimony of Justice Roberts when he was up 
before the Senate Judiciary Committee, when he was asked point blank: 
You have represented some pretty unsavory clients, some people we might 
disagree with, does this reflect your point of view? He reminded us 
what jurisprudence and justice are about in this country, that you will 
have attorneys arguing their clients' point of view, doing their best 
for their client, whether they happen to agree with that client's 
philosophy or not.

[[Page S1139]]

  Every attorney is bound to stand by the truth when it comes to 
testimony. You can never ever allow a client to misstate the truth 
knowingly in a courtroom. That is hard and fast. But when it comes to a 
point of view, for goodness' sake, good attorneys argue the best case 
they can for the people they represent, as Caitlin Halligan did. As 
Justice Roberts reminded us, it is central to the issue of American 
justice. One of our most famous Presidents, John Adams, you would think 
ruined his political career because when the Boston Massacre occurred, 
John Adams, the attorney in Boston, stood and said I will defend the 
British soldiers. He was defending the British soldiers who had killed 
American soldiers. He did it. That was his responsibility as an 
attorney. He went on to be elected President.
  This argument against Caitlin Halligan, from this point of view, is 
as empty as any argument I have heard on the floor of the Senate and 
the Republicans insist on filibustering again her nomination over such 
a week reed of an argument. It is embarrassing. It is troubling. It 
calls into question whether the agreement earlier this year on rules 
changes in the Senate, a bipartisan effort to try to get this Chamber 
back on track to solving problems on a bipartisan basis, did the job.

  We had the first filibuster in history of a Secretary of Defense--the 
first. Chuck Hagel was held up for 10 days because of a Republican 
filibuster, the first time that has ever occurred. Now we follow it 
with this filibuster of this DC Circuit nominee? I don't think we have 
achieved much in our rules reform. I don't think our spirit of 
bipartisanship has shown much in terms of results.
  I hate to suggest this, but if this is an indication of where we are 
headed, we need to revisit the rules again. We need to go back to them 
again. I am sorry to say it because I was hopeful a bipartisan approach 
to dealing with these issues would work. It is the best thing for this 
Chamber--for the people serving and for the history of this 
institution. But if this Caitlin Halligan nomination is an indication 
of things to come, we have to revisit the rules. If we are now going to 
filibuster based on such weak arguments, then I think we need to 
revisit the rules.
  They said in politics when I was growing up--one of the great 
politicians I worked for, a man named Cecil Partee, used to say for 
every political position you take there is a good reason--and a real 
reason. So the good reason, at least in their eyes, on the Republican 
side, is that Caitlin Halligan argued in court for positions they do 
not agree with. As I said earlier, I think that is an empty accusation. 
What is the real reason? There is a real reason why they are opposing 
Caitlin Halligan time and again. It is because the DC Circuit Court is 
one of the most important courts in America, some argue as important as 
the U.S. Supreme Court, because the DC Circuit Court, time and again, 
considers the rules and regulations and laws which are promulgated in 
Washington. It is the first court of review and if that bench on the DC 
Circuit is tipped one way or the other, too conservative or too 
liberal, it shows.
  Right now it has been tipped toward the conservative side. 
Republicans engineered a deal when we were, years ago, embroiled in 
controversy over this issue of filibustering judicial nominees. They 
engineered and brokered a deal to make several appointments to the DC 
Circuit that tipped the balance toward the conservative side.
  Now, out of the 11 positions in the DC Circuit, only 7 are filled. We 
are trying to fill the 8th, and they are worried that if Caitlin 
Halligan comes in--and she is not as conservative as they wish--it may 
be closer to balance. Isn't that what we want, a more balanced court? 
It is what we should want. It is the real reason the Republicans oppose 
her nomination.
  I am sorry for her that she has to be a victim of this political 
strategy. It doesn't have much to do with her personally, and I hope a 
few Republicans who are necessary will step up and give us a chance to 
vote on her nomination; otherwise, we are back into the doldrums again 
in terms of the Senate embroiled in controversy, stuck on filibusters.
  Since no one else is seeking the floor at this moment, I ask 
unanimous consent that the time consumed during quorum calls be charged 
equally to both sides.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The ACTING PRESIDENT pro tempore. The Republican leader.
  Mr. McCONNELL. Mr. President, today the Senate will vote on cloture 
on the nomination of Caitlin Halligan to the U.S. Court of Appeals for 
the DC Circuit. I will again oppose invoking cloture on the nomination, 
and I will explain why.
  In short, Ms. Halligan's record of advocacy and her activist view of 
the judiciary lead me to conclude she would bring that activism right 
to the court. As I have said many times before, the role of a judge in 
our system is to determine what the law says, not what they or anybody 
else wants it to be. That is not Ms. Halligan's view of the courts. She 
views them as a means to ``enable enviable social progress and 
mobility''--to ``enable enviable social progress and mobility'' with 
the judges, not the American people, using their office to determine 
what ``progress'' is ``enviable.'' That is the view of Ms. Halligan.
  When she was in a position of authority, she put that activist view 
into practice time and time again. On the subject of second amendment 
rights, Ms. Halligan, as solicitor general of New York, advanced the 
dubious legal theory that those who make firearms should be liable for 
the criminal acts of third parties who misuse them.
  Imposing potentially massive tort liability against the makers of a 
lawful product because of the criminal acts of someone else did not 
seem much like ``enviable social progress'' to Randall Casseday, who is 
with Kahr Arms, which sells firearms to the New York City Police 
Department. Here is what he said:

       I can't see how Kahr Arms can be responsible for misuse of 
     its product. I don't see how you can do that. One lawsuit 
     would put us out of business.

  Fortunately, the State court in New York followed the law and 
rejected Ms. Halligan's entreaty that it make up new law in order to 
achieve the so-called social progress she envisioned. The court 
observed that it had never recognized the novel claim pursued by Ms. 
Halligan, nor had other courts, for that matter. Moreover, the State 
court called what she wanted it to do to manufacturers of a legal 
product ``legally inappropriate'' and said the power she wanted the 
courts to assert was the responsibility of ``the Legislative and the 
Executive branches.''
  So out of bounds were the types of frivolous lawsuits pursued by Ms. 
Halligan that Congress did something rare: It actually passed tort 
reform to stop them, and it passed by a wide bipartisan majority. In 
her zeal for these frivolous lawsuits, Ms. Halligan then chose to 
criticize the Congress for having the temerity to exercise its 
policymaking responsibility to protect a lawful industry. However, she 
didn't just criticize the Congress for trying to stop the frivolous 
lawsuits she was pursuing, she chose to exaggerate the scope of the 
bill by claiming that it would stop State legislatures by ``cutting off 
at the pass any attempt to find solutions that might reduce gun 
crime.'' This assertion was false. It strains credulity that nearly 
half the Senate Democratic Conference who supported the legislation 
would vote not only for tort reform but would vote for Federal 
legislation that would block States from passing anything at all 
related to gun crime. Her mischaracterization of the legislation 
underscores her zeal for the frivolous lawsuits she was pursuing.
  True to the adage ``frequently wrong but never in doubt,'' Ms. 
Halligan was undeterred. Having had both her State court and the 
Congress repudiate her novel legal theories, Ms. Halligan then filed an 
amicus brief in the Second Circuit Court of Appeals in another 
frivolous case against firearms manufacturers. This time she claimed 
the new law Congress passed was unconstitutional. Not surprisingly, she 
lost that case too.
  Ms. Halligan's stubborn pursuit of frivolous claims against gun 
manufacturers is a textbook example of judicial activism--using the 
courts to achieve a political agenda no matter what the law says.
  Her pursuit of losing legal theories in the service of her own 
personal views

[[Page S1140]]

doesn't stop there. On enemy combatants, Ms. Halligan signed a report 
as a bar association member that asserted that the authorization for 
use of military force did not authorize long-term detention of enemy 
combatants. In 2005 the U.S. Supreme Court ruled in Hamdi v. Rumsfeld 
that the President did, in fact, have this authority. Yet despite this 
precedent, Ms. Halligan chose to file an amicus brief years later 
arguing that the President did not possess this legal authority that 
the Supreme Court had already upheld.
  On immigration, Ms. Halligan filed an amicus brief in the Supreme 
Court arguing that the National Labor Relations Board should have the 
legal authority to grant back pay to illegal aliens. However, Federal 
law prohibits illegal aliens from working in the United States in the 
first place. Fortunately, the Court sided with the law and disagreed 
with Ms. Halligan on that novel legal theory as well.
  The point here is that even in cases where the law is clear or the 
courts have already spoken--including the Supreme Court--Ms. Halligan 
chose to get involved anyway by using arguments that had already been 
rejected either by the courts, the legislature, or, in the case of 
frivolous claims against the gun manufacturers, by both.
  In other words, Ms. Halligan has time and again sought to push her 
views over and above those of the courts or those of the people as 
reflected in the law. Ms. Halligan's record strongly suggests she would 
not view a seat on the U.S. appeals court as an opportunity to 
adjudicate, evenhandedly, disputes between parties based on the law but 
instead as an opportunity to put her thumb on the scale in favor of 
whatever individual or group or cause she happened to believe in.
  I have nothing against this nominee personally. I just believe, as I 
think most other Americans do, that we should be putting people on the 
bench who are committed to an evenhanded interpretation of the law so 
that everyone who walks into the courtroom knows he or she will have a 
fair shake. In my view, Ms. Halligan is not such a nominee.
  I will be voting against cloture on this nomination, and I urge my 
colleagues to do the same.
  Our decision to do so is not unprecedented--far from it. Many of our 
Democratic colleagues who are expressing shock and utter amazement that 
we denied cloture on Ms. Halligan's nomination for a second time felt 
no compunction about denying cloture on Miguel Estrada's nomination to 
the very same court. They denied nomination for him seven times, in 
fact, even though--unlike Ms. Halligan's record--Mr. Estrada's 
background did not evidence a penchant for judicial activism.
  We have begun this Congress by making progress on filling judicial 
vacancies. I am happy to resume working with the majority on doing so, 
but because of her record of activism, giving Ms. Halligan a lifetime 
appointment to the DC Circuit is a bridge too far.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from New York.
  Mr. SCHUMER. Mr. President, I rise in full support of Caitlin 
Halligan and must strongly disagree with my friend from Kentucky, the 
Republican leader. The bottom line is very simple: She is a well-
qualified nominee, and we know that.
  The Republican leader acts as if Ms. Halligan were acting on her own. 
Whether the Senator from Kentucky agrees or disagrees, the Republican 
leader cannot cite a single instance where Ms. Halligan was not acting 
as an attorney representing the views of someone else. The same was 
true with what John Roberts did, and the same was true for what Sam 
Alito did. When those issues were brought up, our colleagues on the 
other side justifiably said we cannot attribute those views to them 
when they are representing somebody as an attorney. We all know that 
the obligation of an attorney is to represent his or her client, 
whether we agree or disagree with those views.
  When one works as solicitor general, they represent the State of New 
York. The State of New York's views on guns were clear, and Ms. 
Halligan ably represented those views. But nothing she has said about 
guns that was cited by my good friend the Republican leader was her own 
view. Similarly on the terrorism cases, she was representing an office 
that was prosecuting, not her views, so the comparison to Miguel 
Estrada is like night and day. Miguel Estrada had his own very, very 
clear views on the law, and he stated them in speeches, in articles, 
and in other ways. That is not so with Ms. Halligan. In fact, I 
challenge the other side to give me one instance where they disagree 
with something Ms. Halligan stated as her own views as opposed to 
representing someone as a lawyer should.
  What is really going on here? What is going on is that our colleagues 
want to keep the second most important court in the land, the DC 
Circuit, vacant because right now there are four vacancies and the 
majority of those on the court have been appointees of Republican 
Presidents and, in fact, are very conservative. That is what is going 
on. Let's call it what it is. This has nothing to do with Ms. Halligan. 
This has to do with keeping a court they care about from having someone 
who doesn't have those same very conservative views. Ms. Halligan is a 
moderate, and that bothers people on the other side. It bothers the 
hard right who use the DC Circuit in their court cases to try to 
constrict government.
  I say this to my good colleagues: We have come to an agreement on 
district court judges and on other nominees. We have come to a general 
agreement that there ought to be more comity. The Republican leader, my 
friend from Tennessee, and so many others have said we should do that. 
The filibustering of Caitlin Halligan is not, I will admit, against the 
letter of our agreement because it simply applies to district court 
judges, but it sure is against the spirit.
  All those on our side who said we should change the rules because 
issues such as the filibuster of Ms. Halligan would occur are being 
vindicated even though my colleagues on the other side of the aisle 
would not want that type of option to be on the table.
  I say this to my colleagues because I believe and I think most of us 
believe that this is nothing about Ms. Halligan, but it is about 
keeping the DC Circuit vacant and not allowing our President to 
rightfully fill those vacancies. We are going to bring nominee after 
nominee after nominee up to fill that DC Circuit. Are they going to 
continue to filibuster every nominee and find some trivial excuse to 
filibuster him or her? Because that is what is going to happen.
  The obstructionist views that some on the other side have held and 
implemented--which served them so poorly in the election of 2012, in 
the polls, and in what the American people want, which is for us to 
come together--will be exposed.
  I would urge my colleagues to forgo this charade. Don't vote for 
Halligan if you don't like her, but don't filibuster her, because we 
are going to come back time after time after time with nominees to this 
circuit who are qualified, who are moderate, and who have fine personal 
ethics. Are they going to ObamaCare each one of them? Because that is 
the challenge they will face.
  I urge and plead with my colleagues, based on the new comity we are 
desperately seeking in this Chamber, to avoid this filibuster, allow 
Caitlin Halligan to have an up-or-down vote. She is extremely worthy of 
the position for which she was nominated. It is only ideology, only a 
view that this important circuit should not be filled with nominees 
whom our Democratic President nominates that is motivating, in my 
judgment, this action.
  I think my time has expired, and I note the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. GRASSLEY. 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.
  The Senator from Vermont.
  Mr. LEAHY. Mr. President, will the Senator yield?
  Mr. GRASSLEY. Yes.
  Mr. LEAHY. Mr. President, I realize we have not gone in the regular 
order with the manager of the nomination speaking first. We are having 
a hearing right now with the Attorney General. So I ask unanimous 
consent, when the distinguished Senator finishes his

[[Page S1141]]

speech, whatever length it is, and all time will have then been used up 
so there would not be any time reserved for the manager of this 
nomination, to speak for 2 minutes at the conclusion of Senator 
Grassley's remarks.
  The ACTING PRESIDENT pro tempore. Is there objection?
  Without objection, it is so ordered.
  Mr. GRASSLEY. Mr. President, I ask to speak for 15 minutes on this 
nomination that is before the Senate.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. GRASSLEY. Mr. President, I rise in opposition to the nomination 
of Caitlin Halligan, the President's nominee for the United States 
Circuit Court for the District of Columbia. I wish to take a few 
minutes to explain to my colleagues why we should not change our prior 
position regarding this nomination. It was previously rejected and 
should be rejected again.
  Before I talk about Ms. Halligan's record, I want to comment on the 
process. While I recognize the majority leader's right to bring up this 
nomination, I question why we are spending time on a politically 
charged and divisive nomination. I wish the Senate instead would focus 
on the critical fiscal, national security, and domestic issues we face.
  The Senate determined more than a year ago that this nomination 
should not be confirmed. Rather than accepting the Senate's decision, 
the President has renominated Ms. Halligan. It is time for the 
President and Senate Democrats to accept the fact that this nomination 
is not going to be confirmed by the Senate. We need to move on.
  It is well understood and accepted that nominations to the DC Circuit 
deserve special scrutiny. The Court of Appeals for the DC Circuit hears 
cases affecting all Americans. It is frequently the last stop for cases 
involving Federal statutes and regulations. Many view this court as 
second in importance only to the Supreme Court. And as we all know, 
judges who sit on the DC Circuit are frequently considered for the 
Supreme Court. So there is a lot at stake with nominations to this 
court. This is a court where we can least afford to confirm an activist 
judge.
  I have a number of concerns regarding Ms. Halligan's views that 
indicate she will be an activist judge. There are concerns regarding 
her judicial philosophy and her approach to interpreting the 
Constitution. Her stated view that courts seek ``to solve problems and 
not just to adjudicate them'' indicates a willingness to abuse the role 
of a judge should she be confirmed. She has advocated for an ``evolving 
standard'' of the Constitution, indicating a judicial philosophy that 
embraces the notion of a living Constitution. In adopting the ``living 
Constitution'' theory of interpretation, judges routinely substitute 
their own personal views in place of what the Constitution demands.
  I wish to share with my colleagues why I have concluded that Ms. 
Halligan would approach judging with an activist bent. Let me give just 
a couple examples, beginning with her record on the second amendment.
  In 2003, Congress was debating the Protection of Lawful Commerce in 
Arms Act or, as most of us called it, the Gun Liability bill. At the 
time, gun manufacturers were facing lawsuits based on meritless legal 
theories. This frivolous litigation was specifically designed to drive 
gun manufacturers out of business.
  As it turns out, while many of us--both Republicans and Democrats--
were fighting here in Congress to stop these lawsuits, Ms. Halligan was 
pursuing this precise type of litigation in the State of New York.
  In New York v. Sturm & Ruger, Ms. Halligan advanced the novel legal 
theory that gun manufacturers, wholesalers, and retailers contributed 
to a ``public nuisance'' of illegal handguns in the State. Therefore, 
she argued, gun manufacturers should be liable for the criminal conduct 
of third parties.
  Some of my colleagues have argued that we should not consider this 
aspect of Ms. Halligan's record because at the time she was working as 
the solicitor general of New York. But no one forced Ms. Halligan to 
approve and sign this brief. No one compelled her to advance a 
completely frivolous legal theory.
  I believe a close examination of Ms. Halligan's record indicates she 
was more than just an advocate. She was using the full weight of her 
office to advance and promote a political agenda masked by a legal 
doctrine that is well outside of the legal mainstream.
  In the case I just mentioned, which was the first of two cases Ms. 
Halligan was involved in regarding gun manufacturers, the New York 
State appellate court found her argument to be completely meritless and 
explicitly rejected her theory.
  The court went so far as to say that it had ``never recognized [the] 
common-law public nuisance cause of action'' that Ms. Halligan 
advanced, and that it would be ``legally inappropriate'' to permit the 
lawsuit to proceed. Moreover, far from accepting Ms. Halligan's 
invitation to legislate from the bench, the court properly concluded 
that ``the Legislative and Executive branches are better suited to 
address the societal problems concerning the already heavily regulated 
commercial activity at issue.''
  I will remind my colleagues that Ms. Halligan was pursuing this legal 
theory at the same time we were debating the gun liability bill here in 
Congress. There is no question that the dubious legal theories she was 
advancing in court reflected her own personal views, not just a 
position she was advocating on behalf of a client.
  In a speech Ms. Halligan delivered on the subject in May of 2003, she 
said she opposed the legislation being considered by Congress because, 
``[i]f enacted, this legislation would nullify lawsuits brought by 
nearly 30 cities and counties--including one filed by my office--as 
well as scores of lawsuits brought by individual victims or groups 
harmed by gun violence. . . . Such an action would likely cut off at 
the pass any attempt by States to find solutions--through the legal 
system or their own legislatures--that might reduce gun crime or 
promote greater responsibility among gun dealers.''
  Later in that same speech, Ms. Halligan expressed her view of the law 
and legal system. She said, ``Courts are the special friend of liberty. 
Time and time again we have seen how the dynamics of our rule of law 
enables enviable social progress and mobility.''
  I find this statement troubling, especially as it relates to the 
nuisance lawsuits against gun manufacturers. Those lawsuits are a prime 
example of how activists on the far left try to use the courts to 
affect social policy changes that they are unable to achieve through 
the ballot box. That is why I believe those lawsuits represented not 
only bad policy but, more broadly, an activist approach to the law.
  Now, as I said, the State appellate court rejected her legal theory, 
and Congress subsequently passed legislation--by a wide bipartisan 
margin--to stop those lawsuits. But Ms. Halligan still forged ahead. In 
2006, notwithstanding the fact the Congress had passed tort reform in 
this area, she attempted once again to revive the ability of States to 
pursue gun manufacturers. Only this time, she advanced her claims in 
Federal court, arguing the legislation Congress passed was 
unconstitutional. Fortunately, the Federal appellate court rejected her 
legal theory as well.
  Ms. Halligan's record of taking far left and legally untenable 
positions is not limited to her legal briefs in gun cases. Another 
example of how she crossed the line from advocate to activist is 
Scheidler v. National Organization for Women. In that case she argued 
for an expansive definition of extortion under the Hobbs Act. Her 
support of NOW's claim that pro-life groups had engaged in extortion 
was rejected by eight Justices of the Supreme Court, including Justice 
Ginsburg--one of the most liberal justices on the Court.
  There are a number of other aspects of her record that I find 
problematic. For instance, Ms. Halligan's views on the war on terror 
and the detention of enemy combatants are especially troublesome 
because Ms. Halligan is a nominee for the DC Circuit, where many of 
these issues are heard.
  In 2004, Ms. Halligan was a member of a New York City bar association 
that published a report entitled: ``The Indefinite Detention of `Enemy 
Combatants' and National Security in the Context of the War on 
Terror.''
  That report argued there were constitutional concerns with the 
detention of terrorists in military custody. It

[[Page S1142]]

also argued vigorously against trying enemy combatants in military 
tribunals. Instead, it argued in favor of trying terrorists in 
civilian, article III courts.
  Ms. Halligan is listed as one of the authors of that report. But when 
it came time to testify at her hearing, Ms. Halligan tried to distance 
herself from the report. She testified that she did not become aware of 
the report until 2010. In a followup letter after her hearing, Ms. 
Halligan did concede that ``it is quite possible that [a draft of the 
report] was sent to me,'' but that she could not recall reading the 
report.
  I recognize that memories fade over time. But, as I assess her 
testimony, I think it is noteworthy that at least four other members of 
that bar association committee abstained from the final report. Ms. 
Halligan did not.
  I would also point out that several years later she co-authored an 
amicus brief before the Supreme Court in the 2009 case of Al-Marri v. 
Spagone. Ms. Halligan's brief in that case took a position similar to 
the 2004 report with respect to military detention of terrorists. In 
that case, she argued that the Authorization for Use of Military Force 
did not authorize the seizure and indefinite military detention of a 
lawful permanent resident alien who conspired with al-Qaida to execute 
terror attacks on the United States.
  The fact that Ms. Halligan coauthored this brief, pro bono, suggests 
to me that she supported the conclusions reached by the 2004 report. 
And again, this issue is particularly troublesome for a nominee to the 
DC Circuit, where many of these questions are heard.
  There are additional aspects of Ms. Halligan's record that concern 
me.
  As New York's Solicitor General, Ms. Halligan was responsible for 
recommending to Attorney General Spitzer that the State intervene in 
several high-profile Supreme Court cases. She filed amicus briefs that 
consistently took activist positions on controversial issues such as 
abortion, affirmative action, immigration, and federalism.
  These are just some of my concerns regarding the nominee's judicial 
philosophy and her approach to interpreting the Constitution. These are 
neither trivial nor inconsequential grounds on which to oppose her 
nomination.
  Based on her record, I simply do not believe she will be able to put 
aside her long record of liberal advocacy and be a fair and impartial 
jurist.
  Supporters argue that out of a sense of ``fairness'' we should 
confirm Ms. Halligan. They note that her nomination has been pending 
for over 2 years.
  Let me remind my colleagues that while this seat has been vacant for 
over 7 years, it has not been without a nominee for all of that time.
  Following the elevation of then-Circuit Judge John Roberts in 2005, 
President George W. Bush nominated an eminently qualified individual 
for this seat, Peter Keisler. Mr. Keisler was widely lauded as a 
consensus, bipartisan nominee. His distinguished record of public 
service included service as Acting Attorney General. Despite his broad 
bipartisan support and qualifications, Mr. Keisler waited 918 days for 
a committee vote that never came. There was no clamor from the other 
side that we needed to fill the vacancy. There was no demand that Mr. 
Keisler be afforded an up-or-down vote. So it seems to me that too 
often, with my Democratic colleagues, ``fairness'' is a one-way street.
  When the Democrats refused to consider Mr. Keisler's nomination--or 
even to give him a committee vote--the other side justified their 
actions based on the DC Circuit caseload. So I would like to make a few 
comments about how the current caseload of the DC Circuit stacks up 
against the caseload that existed when Mr. Keisler's nomination was 
subjected to a pocket filibuster.
  Before doing so, I would again emphasize that given Ms. Halligan's 
record on a host of controversial issues, the case for rejecting her 
nomination would remain, regardless of the number of vacancies or the 
court's workload. However, since some of my colleagues are declaring a 
``judicial emergency'' on the DC Circuit Court, let me set the record 
straight. Contrary to assertions we have recently heard regarding the 
court's workload, since 2005, the DC caseload has actually continued to 
decline. The total number of appeals filed is down over 13 percent. The 
total number of appeals pending is down over 10 percent; filings per 
panel are down almost 6 percent.
  Compared to other courts of appeals, the DC Circuit caseload measured 
by number of appeals pending per panel is 54 percent less than the 
national average. Filings per judge are also significantly lower than 
for the rest of the courts. While the national average of filings per 
active judge is 361, the DC Circuit is less than half, at 170 filings 
per active judge. And if you take into consideration the fact that the 
DC Circuit now has six senior judges, all of whom continue to hear 
cases and write opinions, there is a 26-percent decrease in case 
filings per judge on the court since 2005. So by any meaningful 
measure, the DC Circuit's workload pales in comparison to the other 
circuit courts.
  Given the concerns I have about Ms. Halligan's record on the second 
amendment, the war on terror, and other issues, my concerns regarding 
her activist judicial philosophy, and the court's low workload, I 
oppose this nomination. I urge my colleagues to do the same.
  Finally, I would note a number of organizations have expressed their 
opposition to this nomination. They are the American Conservative 
Union, 9/11 Families for a Safe & Strong America, the National Rifle 
Association, Gun Owners of America, Citizens Committee for the Right to 
Keep and Bear Arms, Committee for Justice, Concerned Women for America, 
the American Center for Law and Justice, Heritage Action, Liberty 
Counsel Action, Family Research Council, Eagle Forum, Center for 
Judicial Accountability, Republican National Lawyers Association, 
Judicial Action Group, Susan B. Anthony List, Americans United for Life 
Action, and the Faith and Freedom Coalition.
  Mr. WHITEHOUSE. Mr. President, I rise today in support of the 
nomination of Caitlin Halligan to the U.S. Court of Appeals for the 
District of Columbia Circuit.
  Ms. Halligan is an outstanding nominee with sterling credentials and 
broad support among the legal community. By the accounts of everyone 
who has worked with her or observed her work, she is a first-rate legal 
mind and a tireless worker, with great personal integrity and a 
thoughtful temperament that is perfectly suited to the Federal bench. 
Her nomination deserves prompt confirmation.
  Ms. Halligan has spent much of her career as a dedicated and 
distinguished public servant. She has a strong record in law 
enforcement, including in her current role as general counsel at the 
Manhattan District Attorney's Office, an office that investigates and 
prosecutes 100,000 criminal cases annually.
  She is highly esteemed by the New York and national law enforcement 
communities. Her nomination has been endorsed by New York City police 
commissioner Raymond Kelly, former Manhattan district attorney Robert 
Morgenthau, the National District Attorneys Association, several 
Republican district attorneys from New York, the New York Association 
of Chiefs of Police, and the New York State Sheriff's Association, 
among many others.
  Ms. Halligan is also widely recognized as one of the finest appellate 
litigators in the country. As solicitor general for the State of New 
York, she supervised 45 appellate lawyers and represented the State of 
New York, then-Governor George Pataki, a Republican, and other State 
officials in both State and Federal courts. She has been counsel of 
record on nearly 50 cases before the Supreme Court and has argued 
before that court 5 times. Twenty-one of the top lawyers from across 
the political spectrum who have worked with Ms. Halligan, including 
conservatives Miguel Estrada and Carter Phillips, have endorsed her 
nomination. She was rated unanimously ``well qualified'' by the 
American Bar Association.
  President Obama first nominated Ms. Halligan in 2010. Despite Ms. 
Halligan's outstanding qualifications and broad support, our Republican 
colleagues have refused to grant her an up-or-down vote for over 2 
years.
  Some have argued, because of positions that she took in litigation at 
the behest of a client, that she does not have adequate respect for the 
second amendment. Yet both at her hearing and in response to written 
questions, she stated unequivocally that she

[[Page S1143]]

would faithfully follow and apply the Supreme Court's decision in 
District of Columbia v. Heller, which held that the second amendment 
protects an individual right to keep and bear arms for self-defense. 
When asked whether the rights conferred under the second amendment are 
fundamental, Ms. Halligan answered, ``That is clearly what the Supreme 
Court held and I would follow that precedent.'' It doesn't get much 
clearer than that.
  In 2011 Republicans filibustering her nomination claimed that the 
caseload of the DC Circuit did not warrant filling that seat because 
the other judges serving on the court had too few cases. At that time, 
Ms. Halligan was nominated to fill the ninth seat out of 11 on the DC 
Circuit.
  Even at the time, that argument was questionable. Senate Republicans 
confirmed President Bush's nominees for the 9th, 10th, and 11th seats 
on the DC Circuit without concerns about caseload. That court's 
caseload has only gone up in since then. Also, the DC Circuit's 
caseload is uniquely challenging, as the former chief judge of the DC 
Circuit, Patricia Wald, has explained:

       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 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.

  Even if we accept the argument that the DC Circuit did not need 
another judge when Ms. Halligan was nominated for the ninth seat, the 
circumstances have changed. Because an additional vacancy has opened, 
Ms. Halligan is currently nominated for the eighth seat, meaning there 
are now four vacant seats on the court. To put it another way, the 
court is now understaffed by over one-third. At the same time, the 
Administrative Office of U.S. Courts reports that the caseload per 
active judge has increased by 50 percent since 2005, when the Senate 
confirmed President Bush's nominee to fill the 11th seat on the DC 
Circuit.
  Thus, there is no basis for debate now about whether an additional 
judge is needed on the D.C. Circuit. With an extra vacancy and a 
growing caseload, the court considered by many to be second only to the 
Supreme Court in its importance in our Federal judiciary desperately 
needs help.
  Luckily, we have the opportunity to send the court an outstanding 
legal talent in Caitlin Halligan. I urge my colleagues to support her 
confirmation.
  More broadly, I hope that we can come together and return the Senate 
to its best traditions of holding up-or-down votes on judicial 
nominations. We have an opportunity this Congress to move past this 
obstruction and get back to the proper manner of handling judicial 
nominations. Doing so will bring much needed assistance to the Federal 
judiciary, which has been forced to contend with unmanageable judicial 
vacancy rates. It also will do credit to this institution, which is 
failing in its duty to confirm Federal judges. We do not deserve the 
moniker of the ``world's greatest deliberative body'' if we cannot do 
something as simple as confirming judicial nominations.
  There have been some encouraging signs that we are making real 
progress in this regard. For instance, the rules reforms that we voted 
on in a bipartisan manner earlier this year included a provision to 
shorten the postcloture debate window on district court nominees from 
30 hours to a more reasonable 2. This change could dramatically 
streamline the nominations process without limiting the minority's 
ability to filibuster a nominee they do not like. It will expire at the 
end of this Congress, however. I hope that we can come together in 
bipartisan agreement to extend it permanently and perhaps even expand 
it to include circuit court nominees like Ms. Halligan.
  Even with this change, there is still much to be done. The 
nonpartisan Congressional Research Service recently reported that the 
confirmation percentage for President Obama's nominees is the lowest of 
any President in the last 36 years. The effects are obvious. The 
judicial vacancy crisis in this country is real, and it is growing. As 
Supreme Court Chief Justice John Roberts has said, ``a persistent 
problem has developed in the process of filling judicial vacancies. . . 
. This has created acute difficulties for some judicial districts. 
Sitting judges in those districts have been burdened with extraordinary 
caseloads.'' As he explained, there is ``an urgent need for the 
political branches to find a long-term solution to this recurring 
problem.''
  So let's return to the principle that barring ``extraordinary 
circumstances'' a nominee should receive a prompt up-or-down vote on 
the floor, and let's confirm the nomination of the outstanding nominee 
before us today, Caitlin Halligan.
  Mr. McCAIN. Mr. President, I regret that I must oppose cloture on the 
nomination of Caitlin Halligan to the U.S. Circuit Court of Appeals for 
the District of Columbia. During the 109th Congress, I joined 13 of my 
Senate colleagues to negotiate a compromise as part of an effort to 
avoid use of the so-called nuclear option to break an organized 
filibuster on judicial nominations. A tenet of that agreement was the 
right of ``signatories to exercise their responsibilities under the 
Advice and Consent Clause of the United States Constitution in good 
faith.'' Further, the agreement went on to state that ``nominees should 
be filibustered only under extraordinary circumstances, and each 
signatory must use his or her own discretion and judgment in 
determining whether such circumstances exist.''
  In keeping with the 2005 agreement, I have decided to oppose the 
President's nomination of Caitlin Halligan to the U.S. Circuit Court of 
Appeals for the District of Columbia. Ms. Halligan's demonstrated 
record of judicial activism on issues ranging from holding firearm 
manufacturers liable for the crimes of third parties, to arguments 
regarding National Labor Relations Board authorities, to her record on 
the detention of enemy combatants, indicates to me that her activist 
record would only continue if granted the privilege of sitting on the 
U.S. Circuit Court of Appeals for the District of Columbia.
  It is for these reasons and others that I believe Ms. Halligan meets 
the ``extraordinary circumstances'' requirement expressed in the 
agreement. An important constitutional responsibility of the executive 
branch and the U.S. Senate is to ensure that the Federal bench is able 
to handle its caseload expeditiously. In my view, we should only oppose 
cloture in extraordinary circumstances. Unfortunately, I believe this 
nominee meets that requirement, and my vote to oppose is consistent 
with the agreement made in 2005.
  Mrs. FEINSTEIN. Mr. President, I rise in strong support of the 
nomination of Caitlin Halligan to the D.C. Circuit Court of Appeals. As 
a 20-year veteran of the Judiciary Committee and the first woman to 
serve on that committee it is my great pleasure to support Ms. 
Halligan's nomination.
  Ms. Halligan has excelled at every turn in her career. She graduated 
cum laude from Princeton University in 1988. She received her law 
degree, magna cum laude, from Georgetown, where she was managing editor 
of the Georgetown Law Journal and inducted into the Order of the Coif.
  She began her legal career with a clerkship with Judge Patricia Wald 
on the U.S. Court of Appeals for the D.C. Circuit, the first woman to 
serve on the D.C. Circuit.
  She then spent a year in private practice at the Washington, DC firm 
Wiley, Rein, and Fielding, after which she clerked for Justice Stephen 
Breyer on the U.S. Supreme Court. After another year in private 
practice, Ms. Halligan entered public service. She went to the Attorney 
General's Office in the State of New York, first as Chief of the 
Internet Bureau.
  She rose to become First Deputy Solicitor General and ultimately 
Solicitor General of the State of New York, the State's top appellate 
lawyer. During nearly all of Ms. Halligan's time as Solicitor General, 
George Pataki--a Republican--was Governor. Her job was to represent the 
State of New York zealously, and by all accounts she did so with skill 
and dignity.
  Judith Kaye, the former Chief Judge of New York's highest court, 
writes on behalf of the court's entire bench that ``it was invariably a 
treat'' to have Ms. Halligan argue before the court.
  In fact, the National Association of Attorneys General awarded her 
the

[[Page S1144]]

``Best Brief Award'' on numerous occasions, including consecutive 
awards in 2001, 2002, 2003, 2004, and 2005.
  In 2007, she went into private practice to lead the appellate 
practice at the prestigious New York firm Weil, Gotshal, and Manges.
  She returned to public service in 2010 as the General Counsel of the 
New York County District Attorney's Office, where she has served for 
the past 3 years. This office is one of the most distinguished 
prosecutorial offices in the Nation, and it handles more than 100,000 
criminal prosecutions each year.
  Because of her strong background in law enforcement in the State of 
New York, her nomination enjoys the support of major law enforcement 
groups, including:

       The National District Attorney's Association;
       The National Center for Women and Policing;
       The New York Association of Chiefs of Police;
       The New York State Sheriff's Association; and
       New York Women in Law Enforcement.

  She also enjoys the support of many law enforcement officials from 
New York, including New York City Police Commissioner Ray Kelly, New 
York County District Attorney Cyrus Vance, and numerous other County 
District Attorneys across the State.
  Over the course of her distinguished career, she has served as 
counsel for a party or amicus in the Supreme Court more than 45 times. 
She has argued in the Supreme Court herself in five cases, most 
recently in March 2011. She also has argued or participated in dozens 
of other appeals in State and Federal courts.
  In short, Ms. Halligan is an accomplished woman whose sterling 
qualifications are unassailable. She clearly deserves the ``well 
qualified'' rating from the American Bar Association she has received--
the ABA's highest rating.
  Unfortunately, Ms. Halligan's nomination has been pending for a very 
long time. She was first nominated to the D.C. Circuit in September 
2010, 29 months ago. The seat to which she has been nominated has been 
vacant since 2005, when Chief Justice Roberts was elevated.
  Last Congress, my Republican colleagues filibustered her nomination, 
something that I found to be without cause or rationale. I am very 
hopeful that, in this Congress, reasonable minds will prevail, and we 
will invoke cloture and confirm Ms. Halligan.
  I understand that the National Rifle Association is opposed to Ms. 
Halligan's confirmation. Behind the NRA's opposition is the fact that--
while Halligan was New York's Solicitor General, acting at the 
direction of her superiors--the State pursued public nuisance 
litigation against gun manufacturers.
  Think about that: if this standard prevails, any time a person 
represents a State or local government, or the Federal Government, and 
represents that government on a controversial issue at the direction of 
its duly-elected leaders, that may jeopardize a later confirmation 
vote.
  That is not fair. A government lawyer's job is to pursue the 
government's interest vigorously and to do justice, and that is what 
Caitlin Halligan has done. She was appointed by the Attorney General to 
represent the State of New York, while the State had a Republican 
Governor, George Pataki. Her job was to advance New York's interest, 
and she did so with vigor at the direction of her superiors. She should 
not be penalized for it.
  Senator Sessions made this point when the Senate was considering the 
nomination of now-Judge Brett Kavanaugh to the D.C. Circuit. Senator 
Sessions said that ``[s]uggesting that service in an elective branch of 
Government somehow tarnishes a lawyer's reputation would be a terrible 
message for this body to send to the legal community and to all 
citizens.''
  My colleagues will recall that Judge Kavanaugh had quite an activist 
record from our side's perspective: he had worked on the Starr Report, 
which recommended grounds of impeachment of President Clinton; he had 
worked for George W. Bush during the Florida recount; he then worked in 
the White House Counsel's office under President George W. Bush.
  In short, while Kavanaugh may have been a fine lawyer, he had an 
undoubted Republican political pedigree. Yet I carefully considered his 
background, and I voted to invoke cloture on his nomination, as did 
many of my Democratic colleagues. Now it is time for our Republican 
colleagues to do the same on this nomination.
  Last Congress, some of my Republican colleagues argued that the D.C. 
Circuit's caseload does not justify confirming another judge to the 
Court.
  The D.C. Circuit has 11 judgeships. Four of them are vacant now--more 
than a third of the court--and three other judges are currently 
eligible to go senior, so the D.C. Circuit could soon have only four of 
its 11 seats filled.
  When my colleagues raised caseload-based objections to Halligan's 
nomination last Congress, I reminded them that, during the George W. 
Bush Administration, they voted to fill the 10th seat on the D.C. 
Circuit twice and the 11th seat once. If confirmed, Halligan would only 
fill the eighth seat.
  In addition, the D.C. Circuit's caseload per judge has grown 
substantially just in the last few years. The total number of cases 
terminated per active judge has grown to 280 up from 184 in 2010. 
That's more than a 50 percent increase. Similarly, the number of 
appeals at the Court pending per active judge has also spiked. It was 
157 in 2008. Today, it is 203 so it is up by a third.
  This hurts ordinary Americans. Most of the time, the cases heard by 
the D.C. Circuit are not partisan or ideological. But they are critical 
to making sure that Federal regulation in almost every area operates 
predictably and rationally.
  As Former Judge Patricia Wald recently wrote in the Washington Post:
  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 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.
  Moreover, President Obama has been the only President in nearly four 
decades not to have a confirmed appointment to the D.C. Circuit. 
President Ford was the last such President, but there were no vacancies 
during his Administration, and every other President since Warren 
Harding, over 90 years ago, had an appointment to this court. I fear my 
Republican colleagues are treating President Obama differently from 
other Presidents in this regard.
  I will conclude by simply saying that Ms. Halligan is a woman with 
sterling credentials, an exemplary record, and a wealth of experience. 
She has been nominated to a vital court that badly needs her service. I 
believe she should be confirmed, and I urge my colleagues to vote for 
cloture and for confirmation.
  The PRESIDING OFFICER (Ms. Heitkamp). The Senator's time has expired.
  Mrs. GILLIBRAND. Madam President, I ask unanimous consent for 2 
minutes of debate.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. LEAHY. Madam President, I understand the Senator from New York 
will speak following my comments.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, today the Senate has an opportunity to act 
in a bipartisan manner to end a filibuster against an outstanding 
nominee to the D.C. Circuit. Caitlin Halligan is an exceptional 
attorney with the kind of impeccable credentials in both public service 
and private practice that make her unquestionably qualified to serve on 
the D.C. Circuit. No one can seriously question her legal ability, her 
judgment, her character, her integrity, her ethics or her temperament. 
Those who seek to misrepresent her as a partisan or ideological 
crusader are wrong and unfair.
  Some have mischaracterized her record and distorted her views on 
executive authority and terrorism. Here is what she said about the 2004 
New York

[[Page S1145]]

City Bar report that some are using to inflame the debate:

       I was, frankly, taken aback by [this Report], for a couple 
     of reasons. First of all, the Supreme Court has clearly said 
     that indefinite detention is authorized by the AUMF statute. 
     And so the notion that the President lacks that authority, I 
     think, is clearly incorrect. I was also a little bit taken 
     aback by the tone of the report. I think that the issues of 
     indefinite detention and any issues in the national security 
     realm are very serious ones, and I think that approaching 
     those issues as respectfully as possible is the most 
     productive way to proceed. But the bottom line is that the 
     report does not represent my work. It does not reflect my 
     views.

  I hope Senators who intend to make this a basis for filibustering 
this outstanding nominee are listening and understand. Again, she 
testified: ``[T]he bottom line is that the report does not represent my 
work. It does not reflect my views.'' This is no basis for opposing the 
nominee, let alone filibustering her consideration. The report does not 
represent her views; she flat out rejected them as a statement of law.
  During her hearing she testified that she only became aware of the 
2004 New York Bar report in 2010 while preparing for her confirmation 
hearing. She even provided minutes from the City Bar Committee's 
meetings to show that she was not present and not part of the 
subcommittee that drafted the report. She rejected the views in the 
report, saying that it was ``clearly incorrect.'' So while she was one 
of 37 members of a larger Committee, she was not a member of the 
subcommittee that drafted the report. She did not participate in the 
drafting. To filibuster her nomination because of a report she did not 
write, has not endorsed and has, in fact, rejected, would be a great 
injustice to this outstanding woman.
  New York City's Police Commissioner Ray Kelly wrote in strong support 
of Caitlin Halligan again this week, saying:

       I want to reiterate [my] support, and to stress my 
     confidence in her commitment to the vigorous prosecution of 
     our ongoing fight against the threat of terrorism here in New 
     York City.
       Any suggestion that Ms. Halligan would thwart efforts to 
     protect our nation, and our city, against terrorist threats 
     is absurd. For over three years, Ms. Halligan has served as 
     Counsel to the New York County District Attorney. During that 
     time, she has worked extensively on key anti-terrorism cases, 
     including most recently the successful prosecution of Ahmed 
     Ferhani, who pled guilty to very serious charges under New 
     York State's anti-terrorism statute for a 2011 plot to blow 
     up Manhattan synagogues and churches.

  I ask unanimous consent that the full letter be printed in the Record 
at the conclusion of my statement. This is not someone soft on 
terrorism. She has helped bring terrorists to justice. Police 
Commissioner Kelly is not endorsing someone soft on terrorism. Cyrus 
Vance, Jr., the New York County District Attorney, is not endorsing 
someone soft on terrorism.
  This is a woman and mother who lives in downtown New York. She was 
literally blocks away from the twin towers on September 11, 2001. She 
saw and experienced the devastation of the 9/11 terrorist attack on New 
York.
  By any traditional standard, Caitlin Halligan is the kind of superbly 
qualified nominee who should be considered and confirmed by the Senate. 
The Republican leadership's filibuster of this nomination threatens to 
set a new standard that could not be met by anyone. That is wrong, it 
is unjustified, and it is dangerous.
  It takes only a handful of sensible Senate Republicans to do the 
right thing. This is not a time to victimize Caitlin Halligan for some 
sort of political payback or to appeal to narrow special interests. I 
ask those Republican Senators who care about the judiciary and fairness 
to come forward, end this filibuster, and ratchet down the partisanship 
that threatens this institution, our courts and the country.
  A Republican Senator, who was a member of the ``Gang of 14'' in 2005, 
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. I trust that Senator will apply the 
standard he articulated and vote to end this filibuster.
  Another Republican Senator said just last year in voting to end a 
filibuster against another circuit court nominee:

       [W]hen I became a Senator, Democrats were blocking an up-
     or-down vote on President Bush's judicial nominees. I said 
     then that I would not do that and did not like doing that. I 
     have held to that in almost every case since then. I believe 
     nominees for circuit judges, in all but extraordinary cases, 
     and district judges in every case ought to have an up-or-down 
     vote by the Senate.
       If that Senator remains true to his principles, he will 
     vote to end this filibuster.

  Republican Senators who signed that 2005 memorandum of understanding 
continue to serve here in the Senate. If they follow the standard set 
in that agreement, they will vote to end this filibuster. They 
demonstrated what they thought that agreement entailed when they 
proceeded to invoke cloture on a number of controversial nominations of 
President Bush to the D.C. Circuit. If that agreement and standard had 
any meaning, they should all be voting to end this filibuster.
  I urge all those who have said that filibusters of judicial 
nominations are unconstitutional to end this filibuster. I urge those 
who said they would never support a filibuster of a judicial nomination 
to end this filibuster. I urge those who said that they would only 
filibuster in ``extraordinary circumstances'' to end this filibuster. I 
urge all those who care about the judiciary, the administration of 
justice, the Senate and the American people to come forward and end 
this filibuster.
  I yield the floor.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                             City of New York,

                                      New York, NY, March 5, 2013.
     Hon. Charles E. Schumer,
     Hart Senate Office Building,
     Washington, DC.
     Hon. Kirsten Gillibrand,
     Russell Senate Office Building,
     Washington, DC.
       Dear Senator Schumer and Senator Gillibrand: In May 2011, I 
     wrote to the Senate Judiciary Committee in strong support of 
     Caitlin Halligan's nomination to the United States Court of 
     Appeals for the District of Columbia Circuit. I want to 
     reiterate that support, and to stress my confidence in her 
     commitment to the vigorous prosecution of our ongoing fight 
     against the threat of terrorism here in New York City.
       Any suggestion that Ms. Halligan would thwart efforts to 
     protect our nation, and our city, against terrorist threats 
     is absurd. For over three years, Ms. Halligan has served as 
     Counsel to the New York County District Attorney. During that 
     time, she has worked extensively on key anti-terrorism cases, 
     including most recently the successful prosecution of Ahmed 
     Ferhani, who pled guilty to very serious charges under New 
     York State's anti-terrorism statute for a 2011 plot to blow 
     up Manhattan synagogues and churches.
       As I informed the Senate in 2011, I strongly recommend Ms. 
     Halligan for the position to which she has been nominated.
           Sincerely,
                                                 Raymond W. Kelly,
                                              Police Commissioner.

  The PRESIDING OFFICER. The Senator from New York.
  Mrs. GILLIBRAND. Madam President, so many good things about Caitlin 
Halligan have already been said. She is a woman of great intellect, has 
a history of laudable achievements, a record of outstanding public 
service, and she deserves the full support of the Senate today.
  Caitlin has had an exceptional career as an attorney, and I am 
confident she will make an excellent judge. She is currently the 
general counsel at the New York City District Attorney's Office, an 
office that investigates and prosecutes 100,000 criminal cases annually 
in Manhattan.
  She served as our Solicitor General. She was awarded ``Best United 
States Supreme Court Brief'' while she served there.
  She has overwhelming support from law enforcement, from the New York 
Association of Chiefs of Police, the New York State Sheriffs 
Association, the National District Attorneys Association, the New York 
Women in Law Enforcement, along with the support of community leaders, 
such as the Women's Bar Association of the District of Columbia, the 
National Conference of Women's Bar Associations, and the U.S. Women's 
Chamber of Commerce.
  The bottom line is, she is a well-qualified judge who would do great 
service for the United States. Even New York City police commissioner 
Ray Kelly said Caitlin has the ``three

[[Page S1146]]

qualities important for a judicial nominee: intelligence, a judicial 
temperament, and personal integrity.'' She has a strong record.
  As to the debate we have heard on national security, Caitlin lives in 
the heart of New York City. She saw the Twin Towers fall. In the years 
that followed, she worked as pro bono counsel to the board of directors 
of the Lower Manhattan Development Corporation that oversees the 
rebuilding of Lower Manhattan--helping our city to grow stronger every 
single day.
  Lastly, today, women make up roughly 30 percent of the Federal bench. 
For the first time in history, that holds true in trial courts, courts 
of appeals, and the highest court in the land, the Supreme Court.
  It is true we have come a long way, but we still have a long way to 
go on this journey for full equality. I think she is a superbly 
qualified nominee, and I urge my colleagues to vote in support of her.


                             Cloture Motion

  The PRESIDING OFFICER. Pursuant to rule XXII, the Chair lays before 
the Senate the pending cloture motion, which the clerk will state.
  The legislative 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, 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, Barbara Boxer, Benjamin L. 
           Cardin, Robert P. Casey, Jr., Bill Nelson, Barbara A. 
           Mikulski, Amy Klobuchar, Al Franken, Jack Reed, Sheldon 
           Whitehouse, Robert Menendez, Kirsten E. Gillibrand, 
           Richard Blumenthal, Max Baucus, Sherrod Brown, Dianne 
           Feinstein.

  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 legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from South Dakota (Mr. 
Johnson), the Senator from New Jersey (Mr. Lautenberg), the Senator 
from Maryland (Ms. Mikulski), and the Senator from Colorado (Mr. Udall) 
are necessarily absent.
  Mr. CORNYN. The following Senators are necessarily absent: the 
Senator from Idaho (Mr. Crapo), the Senator from Utah (Mr. Hatch), the 
Senator from Nebraska (Mr. Johanns), and the Senator from Louisiana 
(Mr. Vitter).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The yeas and nays resulted--yeas 51, nays 41, as follows:

                       [Rollcall Vote No. 30 Ex.]

                                YEAS--51

     Baldwin
     Baucus
     Begich
     Bennet
     Blumenthal
     Boxer
     Brown
     Cantwell
     Cardin
     Carper
     Casey
     Coons
     Cowan
     Donnelly
     Durbin
     Feinstein
     Franken
     Gillibrand
     Hagan
     Harkin
     Heinrich
     Heitkamp
     Hirono
     Kaine
     King
     Klobuchar
     Landrieu
     Leahy
     Levin
     Manchin
     McCaskill
     Menendez
     Merkley
     Murkowski
     Murphy
     Murray
     Nelson
     Pryor
     Reed
     Rockefeller
     Sanders
     Schatz
     Schumer
     Shaheen
     Stabenow
     Tester
     Udall (NM)
     Warner
     Warren
     Whitehouse
     Wyden

                                NAYS--41

     Alexander
     Ayotte
     Barrasso
     Blunt
     Boozman
     Burr
     Chambliss
     Coats
     Coburn
     Cochran
     Collins
     Corker
     Cornyn
     Cruz
     Enzi
     Fischer
     Flake
     Graham
     Grassley
     Heller
     Hoeven
     Inhofe
     Isakson
     Johnson (WI)
     Kirk
     Lee
     McCain
     McConnell
     Moran
     Paul
     Portman
     Reid
     Risch
     Roberts
     Rubio
     Scott
     Sessions
     Shelby
     Thune
     Toomey
     Wicker

                             NOT VOTING--8

     Crapo
     Hatch
     Johanns
     Johnson (SD)
     Lautenberg
     Mikulski
     Udall (CO)
     Vitter
  The PRESIDING OFFICER. On this vote the ayes are 51 and the nays are 
41. Three-fifths of the Senators duly chosen and sworn not having voted 
in the affirmative, the motion is rejected.
  The majority leader.
  Mr. REID. I enter a motion to reconsider the vote by which cloture 
was not invoked on the Halligan nomination.
  The PRESIDING OFFICER. The motion is entered.


                            Vote Explanation

 Mr. VITTER. Madam President, I could not participate in the 
vote on the motion to invoke cloture on the nomination of Calendar No. 
13, Caitlin Joan Halligan, of New York, to be U.S. circuit judge for 
the District of Columbia Circuit. Had I voted, I would have voted nay.
  Ms. Halligan has consistently espoused extremist positions on well-
settled areas of the law including second amendment rights, abortion, 
and terrorist detention. I believe that Ms. Halligan's demonstrated 
propensity for judicial activism disqualifies her for the Federal bench 
where a judge must impartially apply the law.

                          ____________________