Leahy: End Filibuster Of Halligan Nomination And Vote On This Well-Qualified Nominee

[The Senate will vote at noon today on the motion to invoke cloture on the nomination of Caitlin Halligan to the Court of Appeals for the District of Columbia.]


Statement Of Senator Patrick Leahy (D-Vt.),

Chairman, Senate Judiciary Committee,

On Cloture On The Nomination Of Caitlin Halligan to the D.C. Circuit

December 6, 2011

The Senate stands at a crossroads today.  Voting to end the partisan filibuster of this judicial nomination is as important as it was when the Senate did so in connection with the nomination of Judge McConnell to the United States District Court of Rhode Island earlier this year.  Otherwise, the Senate will be setting a new standard that no nominee can meet to be confirmed to the D.C. Circuit.  Republican Senators who just a few years ago argued that filibusters against judicial nominees were unconstitutional and said that they would never support such a filibuster and those who care about the judiciary and the Senate need to step forward and do the right thing.  End this filibuster now and proceed to vote on this extraordinarily well-qualified nominee. 

Ms. Halligan, nominated to fill one of three vacant seats on the important D.C. Circuit, 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 D.C. Circuit.  Her nomination reminds me of that of John Roberts when he was confirmed unanimously by Democrats and Republicans to the D.C. Circuit in 2003.  I did not agree with every position he had taken or argument he had made as high-level lawyer in several Republican administrations, but I supported his nomination to the D.C. Circuit, as I did to the Supreme Court, because of his legal excellence and ability.  I trusted his testimony that he would fairly apply the law if confirmed. If that standard is used, there is no question that this filibuster will end and Caitlin Halligan will be confirmed.

By any traditional standard, Caitlin Halligan is the kind of superbly qualified nominee who should easily be confirmed by the Senate.  Yet, the Senate Republican leadership’s filibuster of this nomination threatens to set a new standard that could not be met by anyone.  That is wrong, it is unjustified and it is dangerous. But it will take a handful of sensible Senate Republicans willing to buck their leadership and special interest groups.  They have done it before and should again now.  Those who care about the judiciary and the Senate need to come forward and end this filibuster.   

From the beginning of the Obama administration, we have seen too many Senate Republicans shift significantly away from the standards they used to apply to the judicial nominations of a Republican President.   During the administration of the last President, a Republican, they insisted that filibusters of judicial nominees were unconstitutional.  They threatened the “nuclear option” in 2005 to guarantee up-or-down votes for each of President Bush’s judicial nominations. 

Many Republican Senators declared that they would never support the filibuster of a judicial nomination.  Yet, only a few years later, Senate Republicans reversed course and filibustered President Obama’s very first judicial nomination, that of Judge David Hamilton of Indiana.  They tried to prevent an up or down vote on his nomination even though he was nominated by President Obama after consultation with the most senior and longest-serving Republican in the Senate, Senator Dick Lugar of Indiana, who strongly supported the nomination.  The Senate rejected that unjustified filibuster and Judge Hamilton was confirmed with Senator Lugar’s support. 

With their latest filibuster, the Senate Republican leadership seeks to set yet another new standard, one that threatens to make confirmation of any nominee to the D.C. Circuit virtually impossible for the future.  Caitlin Halligan is well-qualified nominee with a mainstream record as a brilliant advocate on behalf of the State of New York and in private practice.  She served for nearly six years as Solicitor General of New York and has been a leading appellate lawyer in private practice, currently serves as General Counsel at the New York County District Attorney’s Office, and has served as counsel of record in nearly 50 matters before the U.S. Supreme Court, arguing five cases before that court and many cases before Federal and state appellate courts.  She clerked for Supreme Court Justice Stephen Breyer and for Judge Patricia Wald on the D.C. Circuit, the court to which she has been nominated.  No Senator has or can question her qualifications.   I have reviewed her record carefully in the course the Judiciary Committee’s thorough process, including her response to our extensive questionnaire and her answers to questions at her hearing and in writing following the hearing.  In my view, there is no legitimate reason or justification for filibustering her nomination.   

Yesterday I put into the record some of the many letters of support we have received for Ms. Halligan’s nomination from those from across the political spectrum.  I ask unanimous consent that additional letters of support be included in the record at the conclusion of my remarks.  These letters are a testament both to her exceptional qualifications to serve and to the fact that this should be a consensus nomination, not a source of controversy and contention.   They attest to the fact that she is not a closed-minded ideologue, but is the kind of nominee who has demonstrated not only legal talent but also a dedication to the rule of law throughout her career.  We should encourage nominees with the qualities of Ms. Halligan to engage in public service and we should welcome people like her to serve on the Federal bench, not denigrate them.    Concocted controversies and a blatant misreading of Ms. Halligan’s record as an advocate are no reason to obstruct this outstanding nomination. 

I also demonstrated yesterday that any so-called “caseload” concern is no justification for filibustering this nomination.  This was not a concern we heard from Republicans when they voted to confirm President Bush’s nominees to fill not only the ninth seat, but also the 10th and 11th judgeships on this court just a couple of years ago.    They should not now be used to filibuster President Obama’s nomination to fill the ninth seat when the D.C. Circuit’s caseload has increased.

The D.C. Circuit is often considered the second most important court in the land because of the complex cases that it handles, cases that have grown in importance since the attacks of September 11.  As noted in a recent Washington Post editorial:  “[Caseload numbers do] not take into account the complexity and scope of the cases that land at the court. They include direct appeals involving federal regulatory decisions and national security matters, including cases stemming from the detentions at the U.S. naval base in Guantanamo Bay, Cuba.”  I ask unanimous consent that a copy of this editorial and one from today’s Boston Globe be included in the Record at the conclusion of my remarks, along with letters to the editor of the Washington Post in support of Ms. Halligan’s nomination. 

Yet, the D.C. Circuit is now more than one-quarter vacant, with three judicial vacancies.  The caseload per active judge has gone up since Republican Senators supported every one of President Bush’s nominations to that court. According to the Administrative Office of U.S. Courts, the caseload per active judge has increased by one third since 2005, when the Senate confirmed President Bush’s nomination of Thomas Griffith to fill the 11th seat on the D.C. Circuit.  That is right -- the D.C. Circuit’s caseload has actually increased.  By any objective measure the work of the D.C. Circuit has grown and the multiple vacancies should be filled, not preserved and extended for partisan purposes.   The extraordinary circumstance that exists here is the more than one-quarter vacancy level on the court with only eight active judges.

If caseloads were really a concern of Republican Senators, they would not be standing by while their leadership delays Senate consideration the nominations of Morgan Christen of Alaska and Jacqueline Nguyen of California to the Ninth Circuit, and Judge Adalberto Jordan of Florida to the Eleventh Circuit.  These two circuits have the highest number of cases per active judge.  The Ninth Circuit is burdened by multiple vacancies and the largest caseload in the nation.  Judge Nguyen is nominated to fill the judicial emergency vacancy that remains open after the Republican filibuster of Goodwin Liu.  I have repeatedly urged the Senate to take up and consider these nominations, which are supported by home state Senators, yet Republicans have refused to consider them for months.  Anyone truly concerned about courts’ caseloads should join with me to provide consider to the other 20 judicial nominations still pending on the Senate calendar and awaiting final action.

Given Caitlin Halligan’s impeccable credentials and widespread support, this should be the kind of consensus nomination supported by Senators of both parties who seek to ensure that the Federal bench continues to attract the best and brightest.  Certainly, by the standard utilized in 2005 to end filibusters and vote on President Bush’s controversial nominees, this filibuster should be ended and the Senate should vote on the nomination.  Those Senators who claim to subscribe to a standard that prohibits filibusters of judicial nominees except in “extraordinary circumstances” cannot support this filibuster.  There are no “extraordinary circumstances” to justify this filibuster. 

In 2005, Senator Graham, a member of the “Gang of 14” described his view of what comprises the “extraordinary circumstances” justifying a filibuster.  He said: “Ideological attacks are not an ‘extraordinary circumstance.’  To me, it would have to be a character problem, an ethics problem, so allegations about the qualifications of a person, not an ideological bent.”  Caitlin Halligan has no “character problem,” no “ethics problem,” and there is no justification for this filibuster.   Caitlin Halligan is a superbly qualified nominee whose personal integrity, temperament and abilities have been attested to by the many leading lawyers who have worked with and against her. 

The signers of that 2005 Memorandum of Understanding, and the Senate, demonstrated what they thought that agreement entailed when they proceeded to invoke cloture on a number of controversial nominations.  The Senate invoked cloture on the nominations of Janice Rogers Brown and Thomas Griffith to the D.C. Circuit, the circuit to which Caitlin Halligan has been nominated.

As a Justice on the California Supreme Court, Janice Rogers Brown was a nominee with a consistent and extensive record, both on the bench and off, of using her position as a member of the court to put her views above the law.  This was not a question of one case or one issue on which Democrats differed with the nominee—I have voted for hundreds of nominees of Republican and Democratic Presidents which whom I differ on many issues.  But this was a nominee with views so extreme she was opposed not just by her home state Senators, but also by more than 200 law school professors from around the Nation who wrote to the Committee expressing their opposition.   Her record in numerous decisions as a judge showed that she was willing to put her personal views above the law on issue after issue, including a willingness to roll back the clock 100 years on workers’ and consumers’ rights, to undermine clean air and clean water protections for Americans and their communities, laws providing affordable housing, zoning laws that protect homeowners, and protections against sexual harassment, race discrimination, employment discrimination, and age discrimination.  In fact, while serving on the California Supreme Court, Justice Brown had argued that Social Security is unconstitutional, a position clearly at odds with well established law.  She went so far as to say “today's senior citizens blithely cannibalize their grandchildren.” 

Despite her ideological extremism and willingness to implement her radical personal views as a judge without regard to the existing law, she was confirmed to the D.C. Circuit.  Her nomination judged not to present “extraordinary circumstances” supporting a filibuster.  There is no justification under the standard applied to the nomination of Janice Rogers Brown for a filibuster of the nomination of Caitlin Halligan, a widely-respected nominee with a clear devotion to the rule of law and no record of ideological extremism.

The nomination of Thomas Griffith to the D.C. Circuit was also determined not to present “extraordinary circumstances” despite his decision to practice law without a license for a good part of his career, which I felt should be disqualifying.  He was confirmed to fill the 11th seat on the D.C. Circuit.  There is no question under the standard Republicans applied to the nomination of Thomas Griffith, Caitlin Halligan should be confirmed to fill the ninth judgeship on that court. 

I urge Republican and Democratic Senators to come together and end this misguided filibuster of Caitlin Halligan’s nomination to the D.C. Circuit.  There is no basis under any appropriate standard for blocking her nomination from having an up-or-down vote.  To the contrary, Caitlin Halligan’s impeccable credentials and record as an accomplished advocate make her nomination worthy of bipartisan support. 

# # # # #

Press Contact

David Carle: 202-224-3693