03.05.13

Senate Should Confirm Highly Qualified D.C. Circuit Court Nominee

. . . Halligan Would Fill Vacancy Left Open Since 2006

WASHINGTON – Senator Patrick Leahy Tuesday called on Republicans to act in a bipartisan manner to vote on the nomination of Caitlin Halligan to fill a vacancy on the D.C. Circuit Court of Appeals.

Halligan previously served as solicitor general of New York, and President Barack Obama first nominated her to the D.C. Circuit in September 2010.  She has been nominated a total of five times, most recently January of this year.  Halligan’s nomination is strongly supported by the law enforcement community, and if confirmed, she would fill one of four vacancies on the D.C. Circuit.

“After being nominated and renominated four times over the course of the last three years, it is time for the Senate to accord this outstanding woman the debate and vote on the merits that she deserves,” Leahy said on the floor, noting the court’s high number of vacancies and expanding caseload.

“There are now four vacancies on the D.C. Circuit, the vacancies have doubled during the last two years, the bench is more than one-third empty,” Leahy added.  “This is reason enough for Senators to reconsider their previous vote and end this filibuster.”

The Senate will consider a procedural motion on Halligan’s nomination Wednesday. Leahy’s complete statement on the nomination can be viewed online

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Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On The Nomination Of Caitlin Halligan to the D.C. Circuit
March 5, 2013

Tomorrow, the Senate will have an opportunity to correct itself and complete action on the nomination of Caitlin Halligan to the D.C. 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 intellect and her integrity.  Hers is a legal career that rivals that of the D.C. Circuit Judge she was nominated to succeed. 

That judge was John Roberts, Jr., who served on the D.C. Circuit and now serves as the Chief Justice of the United States.  I voted for his confirmation to both the D.C. Circuit and later to the Supreme Court.  He and I do not share the same judicial philosophy or 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 had made as a high-level lawyer in several Republican administrations, but I supported his nomination to the D.C. Circuit because of his legal excellence.  Caitlin Halligan, too, is well qualified and her nomination deserves a vote.

Let us apply the same standard to her that we applied to the nomination of Judge Roberts.  After being nominated and renominated four times over the course of the last three years, it is time for the Senate to accord this outstanding woman the debate and vote on the merits that 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 D.C. Circuit.  The ABA Standing Committee on the Federal Judiciary has reviewed her nomination and unanimously found her well qualified. 

The judge for whom she clerked on the D.C. 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, her judgment, her character, her ethics, or her temperament.

She is a stellar candidate with broad bipartisan support.  She is supported by law enforcement, with whom she worked closely while serving as the chief appellate lawyer of 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 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 “will be a first-rate judge.”  I ask unanimous consent to include a list of those letters of support for Ms. Halligan in the Record at the conclusion of my remarks. 

It is disappointing that narrow, special interest groups seek to misrepresent her as a partisan or ideological crusader.  She is not.  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. 

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. 

Caitlin Halligan’s public service to the State of New York is commendable and no reason to filibuster this nomination.  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. 

It is not only wrong, but dangerous to attribute the legal positions she took in representing her client, the State of New York, to her personally and to take the additional leap to contend that her personal views will override her commitment to evenhandedly apply the law. 

The other justification Republican Senators used two years ago to justify their filibuster is gone.  Some contended that the caseload of the D.C. Circuit was not sufficiently heavy to justify her appointment.  There are now four vacancies on the D.C. Circuit, the vacancies have doubled during the last two years, the bench is more than one-third empty.  This is reason enough for Senators to reconsider their previous vote and end this filibuster.

The Senate responded to this caseload concern in 2008 when we agreed to decrease the number of D.C. Circuit judgeships from 12 to 11.  Caitlin Halligan is nominated to fill the eighth seat on the D.C. Circuit, not the eleventh.  Just a few years ago, when the D.C. Circuit caseload per active judge was lower than it is now, all Republican Senators voted to confirm nominees to fill the ninth seat, the tenth seat twice and the eleventh judgeship on this court. 

In fact, the D.C. Circuit caseload per active judge has increased 50 percent from 2005 when the Senate confirmed a nominee to fill the eleventh seat on the D.C. Circuit bench.  The caseload on the D.C. Circuit is also greater than the caseload on the Tenth Circuit to which the Senate just confirmed Judge Robert Bacharach of Oklahoma last week. 

I urge 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.   

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