Mr. CARDIN. Madam President, I am taking this time on the floor to speak in support of the nomination of Caitlin Halligan to be U.S. Circuit judge for the U.S. Court of Appeals for the District of Columbia Circuit.
I think my comments are at the right time, following Senator Alexander‘s comments about the difficulty we have had in the past confirming judicial nominees and the use of the filibuster that blocked the consideration of Presidential nominees.
Senator Alexander pointed with pride to an accommodation that was reached a few years ago, before I got to the Senate, that the filibuster would only be used in “extraordinary circumstances.”
Ms. Halligan was first nominated by President Obama in September 2010, after that accommodation had been reached. I am disappointed that her nomination was filibustered, nearly on a party-line vote, in December of 2011. I urge my colleagues to allow an up-or-down vote on Ms. Halligan’s nomination.
I would challenge my colleagues who oppose an up-or-down vote to come to the floor and explain the extraordinary circumstances that would prevent an up-or-down vote on Ms. Halligan’s nomination. She is extremely well qualified for this position, and I will support her nomination.
The Senate Judiciary Committee favorably reported her nomination last month. The American Bar Association’s Standing Committee on the Federal Judiciary unanimously rated Ms. Halligan “well qualified” to serve on the DC Circuit–the highest rating from its nonpartisan peer review.
Ms. Halligan received her A.B. from Princeton University and her J.D. from Georgetown University Law School. After law school, she clerked for Supreme Court Justice Stephen Breyer and for Judge Patricia Wald on the DC Circuit, the court to which she has now been nominated.
After working in private practice, Ms. Halligan joined the New York State attorney general’s office. She began working in the office as the first chief of the office’s Internet Bureau, where she worked to protect consumers against Internet fraud and safeguard online privacy. She was ultimately promoted to the position of solicitor general, a position she held for 6 years. The solicitor general is basically the top attorney for the State of New York.
In that capacity she managed a staff of nearly 50 appellate attorneys litigating in State and Federal appellate courts. Her responsibility included handling cases of public corruption and judicial misconduct.
She then became a leading appellate lawyer in private practice at a national law firm, serving as counsel of record for a party or amicus curiae in nearly 50 matters before the U.S. Supreme Court.
She is well qualified for the position to which President Obama has nominated her.
She is currently general counsel at the New York County district attorney’s office, an office that investigates and prosecutes 100,000 criminal cases annually in Manhattan. In her current position, she is focused on reducing crime, protecting victims of domestic and sexual violence, and reviewing so-called cold cases that remain unsolved.
Most of Ms. Halligan’s career has been dedicated to public service and law enforcement. She has also made time over the years to devote substantial time to pro bono work, including representing the evacuees from Hurricanes Katrina and Rita who were in danger of losing their rental assistance benefits.
She has also served as pro bono counsel to the Board of Lower Manhattan Development Corporation, the entity that is overseeing the rebuilding of Lower Manhattan following the terrorist attacks of September 11, 2001.
She has her priorities straight. She is an outstanding attorney. She has used a lot of her time to help people less fortunate receive free legal services as a result of her participation.
Ms. Halligan has received widespread support from law enforcement and legal professionals across the political spectrum which I understand will be made part of the Record, so I will not repeat those statements now.
I have heard only two substantial reasons in opposition to her nomination. Let’s review those two points that have been raised to see whether they are extreme circumstances that warrant a vote to support a filibuster. Last time we had over 40 Senators who supported the filibuster basically blocking an up-or-down vote. We had an accommodation that would only be used for extraordinary circumstances. Let’s take a look at the two cases that have been made about why those extraordinary circumstances may exist–and, I will submit, they do not exist.
One argument is that Ms. Halligan is a liberal advocate who cannot set aside her personal views on issues, including the second amendment. The other argument is that the D.C. Circuit has too low a caseload to justify additional judges.
Ms. Halligan was questioned about her views on the second amendment issues during her Senate Judicial Committee hearing. She testified, both at her hearing and in response to written questions, that she would faithfully follow and apply the Supreme Court precedent from the District of Columbia v. Heller and McDonald v. Chicago, which held the second amendment protects an individual right to keep and bear arms for self-defense.
When asked by Senator Grassley whether the rights conferred under the second amendment are fundamental, Ms. Halligan answered: “That is clearly what the Supreme Court held and I will follow that precedent, Senator.”
Some have also criticized her for her position she advocated while solicitor general for the State of New York. In her confirmation hearing, she made it clear she filed these briefs at the direction of the New York attorney general–arguing on behalf of New York State, not her own views. It was her responsibility as solicitor general to represent her client, the State of New York.
Of course, she has worked on controversial issues before the State of New York, such as affirmative action, the death penalty, and same-sex marriage. As New York solicitor general, she argued in support of affirmative action and in defense of the constitutionality of the death penalty because that is what her client’s position was and she represented her client. That is what she is supposed to do. That is what a lawyer does, represent her client as best as she can, and she did that well on behalf of her client, the State of New York.
But I will remind my colleagues what Chief Justice Roberts said during his Supreme Court confirmation hearing in terms of attributing the views of a client to an attorney. Chief Justice Roberts testified that:
It’s a tradition of the American Bar that goes back before the founding of the country that lawyers are not identified with the positions of their clients.
We should apply the same standard when considering Ms. Halligan’s nomination, as our legal system requires vigorous advocacy by both sides of a dispute.
I quote Chief Justice Roberts here in part because Ms. Halligan, quite remarkably, has been nominated in 2013 to fill Chief Justice Roberts’ former seat in the D.C. Circuit, which became vacant in 2005.
This brings me to the second argument that has been used. I urge my colleagues to consider whether this is an extraordinary circumstance that justifies a vote in support of a filibuster.
The second argument is that this court has a low caseload, which is just not the case. Chief Justice Roberts was elevated from the D.C. Circuit to the Supreme Court in 2005. His seat has been vacant for 8 years, one of the longest circuit vacancies in the country. The D.C. Circuit has four vacancies on the 11-member court. That is one-third of the court that is currently unfilled.
Ms. Halligan has been nominated by the President for the seat formerly held by Chief Justice Roberts, so, of course, the Senate should act as quickly as possible to fill this seat.
The D.C. Circuit is often referred to as the second most important court in the land due to the complexity and importance of its caseload. The court regularly reviews highly technical decisions and rulemaking of Federal agencies that are based in Washington, often without a lower court decision of a Federal district court.
The D.C. Circuit proclaims the final law of the land for many environmental, health, labor, financial, civil rights, and terrorist cases. The Supreme Court only accepts a handful of cases each year, so the D.C. Circuit is often the last word in these cases.
According to the Administrative Office of the U.S. Court, the caseload per active judge in the D.C. Circuit has increased 50 percent since 2005, when this vacancy was created. It was also the year the Senate confirmed President Bush’s nominee to fill the 11th seat on the court. Let me repeat that. We in 2005 confirmed President Bush’s 11th seat of the 12-seat court. Justice delayed is justice denied.
To remind my colleagues, the Senate confirmed President Bush’s nominees for the 9th, 10th, and 11th seats on the D.C. Circuit. Ms. Halligan is President Obama’s first nominee to the District Circuit to fill the eighth seat. The Senate confirmed four of President Bush’s nominations to the D.C. Circuit, twice filling the 10th seat and once filling the 11th seat.
So there is no extraordinary circumstance that exists. Let’s be clear about that. A vote against moving forward is filibustering a judicial nominee in an effort to kill the nominee and not allow an up-or-down vote. There are no extraordinary circumstances that would justify the delay and not allowing us to have an up-or-down vote.
I urge my colleagues to vote for us proceeding and not using the filibuster; to adhere to the agreement that was reached. Again, it was before I got to the Senate. It was the right agreement, that there should truly be an extraordinary circumstance that prevents an up-or-down vote on a judge. It does not exist in this case. President Obama’s nominee is well qualified. The court is in desperate need of additional judges, being four seats short today, only two-thirds of the bench having been appointed and confirmed to date. I urge my colleagues to vote in favor of proceeding and then, after we have the nominee before us, I hope my colleagues will join me in supporting the confirmation. I think Ms. Halligan will make an outstanding member of the D.C. Circuit.