12.06.2011 0

Senate rejects cloture on D.C. Circuit nominee Caitlin Halligan

The Senate shot down a cloture motion on Obama nominee Caitlin Halligan to serve on the D.C. Circuit Court.

Senate Republicans have done the right thing by blocking a radical, unqualified ideologue, Caitlin Halligan, from taking a seat on the federal bench.  Along with Goodwin Liu, Halligan’s nomination marked a move by the Obama White House to reshape the federal judiciary into a cabal of leftists.  Americans everywhere urge the Senate and Senate Republicans to maintain this stand against Obama’s takeover of the judiciary.

Bill Wilson is the President of Americans for Limited Government. You can follow Bill on Twitter at @BillWilsonALG.

ALSO SEE: Senator Orrin Hatch’s remarks before the vote on Halligan:

I rise today in opposition to the nomination of Caitlin Halligan to the U.S. Court of Appeals for the D.C. Circuit. I reached this conclusion after applying the same standard that I use for all judicial nominations. The Senate owes some deference to the President regarding judicial nominees who are qualified by virtue of their legal experience and, more importantly, their judicial philosophy. I want to briefly mention a few of the reasons why this controversial nominee fails to meet this standard.

One hallmark of an activist judicial philosophy is trying to use the courts to solve problems or address issues that properly belong in the legislative branch. Both as Solicitor General of New York and in private practice, Ms. Halligan argued that gun manufacturers should be held liable for the illegal use of their products. She argued that illegally possessed handguns are a so-called public nuisance for which manufacturers should be held responsible. The New York Court of Appeals rejected this radical theory and properly concluded that such social problems should be addressed by the legislative or executive branches rather than the judicial branch.

Undeterred, Ms. Halligan next went to federal court to challenge the constitutionality of the Protection of Lawful Commerce in Arms Act. Congress enacted that statute so that manufacturers would not be held liable for the illegal use of their products. That measure passed the House and the Senate by at least a two-to-one margin. In this body, 14 Democrats voted for the bill, including 10 who still serve today. As had the New York Court of Appeals, the U.S. Court of Appeals for the Second Circuit rejected Ms. Halligan’s position, upholding the statute and dismissing the litigation.

Ms. Halligan has also taken extreme positions regarding the war on terrorism. I know that liberals do not even want to call it that today, but the reality is that we remain at war against foreign terrorists bent on murdering American civilians. Ms. Halligan would give captured terrorists, who are making war on the United States, access to civilian courts, a right never before recognized in American history. Ms. Halligan was a member of a New York City bar committee that issued a report on the indefinite detention of enemy combatants. This is particularly important because the D.C. Circuit, to which Ms. Halligan has been nominated, is the most important lower court for terrorism cases. She did not abstain from signing the report, as four other committee members did, and so its content and conclusions can be attributed to her.

She argued in that report that the Authorization for Use of Military Force, or AUMF, does not authorize long-term detention of enemy combatants and that alien terrorists should be tried in civilian courts rather than in military commissions. The Supreme Court and the Obama administration have since rejected or abandoned such positions. After the Supreme Court held, in Hamdi v. Rumsfeld, that the AUMF does authorize military detention of resident aliens, Ms. Halligan co- authored a brief arguing otherwise. Not until her Judiciary Committee hearing this year did Ms. Halligan even try to distance herself from these extreme positions, something that my friends on the other side of the aisle would call a confirmation conversion if she were a Republican.

Unfortunately, this was not the only example of Ms. Halligan getting behind novel rights that have no grounding in our Constitution or legal traditions. Ms. Halligan filed a brief in Roper v. Simmons arguing that evolving standards of decency today forbid the execution of individuals who committed murder before the age of 18. This is judicial activism at its worst, giving judges complete control of the Constitution that they are supposed to follow. America’s founders insisted that the meaning of the Constitution does not change until the people change it, and that even judges are bound to follow that meaning. Today, in contrast, the Supreme Court says that the meaning of the Constitution is evolving and that judges are in charge of that evolution.

The fact that Ms. Halligan appears to be solidly in that judicial activist camp is bad enough, and is alone grounds to oppose her nomination. Perhaps sensing that such activism is deeply unpopular among the American people and their elected representatives, she did an about-face at her confirmation hearing and said that the Constitution should be interpreted based on the people’s original meaning rather than on judges’ evolving understandings. So it is legitimate to ask which Ms. Halligan is the real Ms. Halligan. The Ms. Halligan who would create new rights, while ignoring the clear language of the Constitution that protects the right to bear arms? Or the Ms. Halligan who at the last minute has become a convert to originalism?

I think her record speaks for itself.

Ms. Halligan also filed a brief in Scheidler v. National Organization for Women arguing that pro-life protesters should be prosecuted under the federal racketeering statute because they somehow commit extortion. Her argument would require the courts literally to re-write both the racketeering statute and the extortion statute and is another example of Ms. Halligan seeking to pursue her political agenda in the judicial rather than in the legislative branch. I believe instead that the political ends do not justify the judicial means and, thankfully, the Supreme Court voted 8-1 to reject her position.

In addition to her troubling record, it is worth noting that the position to which Ms. Halligan has been nominated hardly fits the category of a judicial emergency. The Senate has this year already confirmed nearly 20 percent more judges than the annual average over the past couple of decades, with I am sure more to come. We have paid particular attention to filling long-term vacancies in jurisdictions with heavy caseloads. Yet between 1993 and 2010, annual case filings in the D.C. Circuit decreased by twice the percentage that filings increased in other circuits. The D.C. Circuit’s caseload per judge is literally one-fourth what it is for other circuits. It has ranked last for years among all circuits in the number of appeals filed per three-judge panel, even after one of its seats was transferred to the Ninth Circuit and even with multiple vacancies. The D.C. Circuit’s caseload is lower today than when Democrats used this caseload argument to block the nomination to this court of Peter Keisler, who waited more than 900 days without a committee vote.

As my colleagues know, I do not oppose judicial nominees often or lightly. While Ms. Halligan appears to be an experienced lawyer and I am sure is a fine person, those are insufficient qualifications for judicial service. The most important qualification is her judicial philosophy, or the kind of judge she would be. The record shows that she embraces the activist judicial approach that I believe is incompatible with the power and proper role of judges in our system of government under a written Constitution. For these, and for additional reasons that my colleagues will discuss further, I cannot support her appointment.

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