Statement of CFJ Executive Director Curt Levey:
Never before have we used the word “urgent” in this space, but Senate Democrats are just a few days away from putting Caitlin Halligan – a committed opponent of gun rights, an apologist for enemy combatants and an all-around judicial activist – on the U.S. Court of Appeals for the D.C. Circuit. Save for the Supreme Court, the D.C. Circuit is the most important court in the nation and this is the most important vote on an Obama judicial nominee to date.
Last night, Senate Majority Leader Harry Reid announced that he will try to invoke cloture on Halligan’s nomination next Tuesday, December 6, at noon. If Reid gets 60 votes on cloture, Halligan will get a lifetime seat on a court that plays a crucial role in national security cases and heard the two biggest Second Amendment cases of our lifetimes, McDonald v. Chicago and District of Columbia v. Heller.
Moreover, the D.C. Circuit is the only court short of the Supreme Court that can stop the Obama Administration’s practice of using regulatory power grabs to accomplish what the President can’t get through Congress. This court is also the top training ground for future Supreme Court nominees.
For all these reasons, it’s urgent that you contact the key senators who will determine whether Reid gets 60 votes (see list below) and tell them to vote no on cloture for Halligan. Urge your friends, colleagues and members to do the same. Calling (202) 224-3121 will get you connected with the Senate office of your choice.
Do not settle for a senator’s promise to vote against confirmation of Halligan if the cloture vote succeeds in forcing a confirmation vote. Such a promise is useless because the battle will be over if Reid wins the cloture vote.
Explain to the senators that, while voting against cloture on a judicial nominee should not be taken lightly, Halligan’s extreme views satisfy the Gang of Fourteen’s “extraordinary circumstances” standard for doing so. Only a few of President Obama’s judicial nominees have met the high threshold of “extraordinary circumstances” and, accordingly, the Committee for Justice has opposed only a handful of Obama nominees. But Halligan clearly meets the threshold. No Obama nominee, save for Supreme Court nominees, is more likely to do damage to the Constitution if confirmed than Ms. Halligan.
Most Republican senators can be counted on to vote against cloture. The remaining ten or so Republicans understand the importance of keeping judicial activists off the D.C. Circuit, but need to be reminded why Caitlin Halligan meets the “extraordinary circumstances” standard. Based on past votes, GOP senators in the latter category likely include Lamar Alexander (TN), Scott Brown (MA), Susan Collins (ME), Lindsey Graham (SC), Mark Kirk (IL), Richard Lugar (IN), John McCain (AZ), Lisa Murkowski (AK), Olympia Snowe (ME), and John Thune (SD).
The Democratic leadership will be cracking the whip hard on this cloture vote, but a couple of moderate Democrats concerned about Halligan’s Second Amendment and national security records might be convinced to vote against cloture. Among the Democrats who might fall into this category are Sens. Mark Begich (AK), Bob Casey (PA), Joe Manchin (WV), Claire McCaskill ( MO), Ben Nelson (NE), Jon Tester MT), and Jim Webb (VA).
Remind these senators that the circumstances of Halligan’s record are extraordinary enough to prompt the National Rifle Association to oppose this judicial nomination, something the NRA has done only a few times. As the NRA’s letter
“Our opposition is based on Ms. Halligan's attacks on the Second Amendment rights of law-abiding Americans. Specifically, she worked to undermine the Protection of Lawful Commerce in Arms Act (PLCAA), enacted in 2005 with strong bipartisan support. This legislation was critically important in ending a wave of lawsuits … which sought to blame firearms manufacturers and dealers for the criminal misuse of their products … Among the governments that sued the industry was the state of New York … while Ms. Halligan was New York's solicitor general, and she strongly supported the litigation [against numerous gun manufacturers] both inside and outside the courtroom.”
Gun Owners of America oppose Halligan’s nomination for similar reasons, adding in their letter
that Halligan “attempted to conceal the extent of her anti-gun animus” in her written testimony to the Senate Judiciary Committee.
Remind senators of Halligan’s troubling views on national security issues. For example, she signed a 2004 manifesto deeply critical of the War on Terror. The document urges that enemy combatants be tried in civilian courts and given the same constitutional protections afforded ordinary criminals. It further argues that Congress’ 2001 Authorization for Use of Military Force Against Terrorists does not allow dangerous enemy combatants to be indefinitely detained, a position rejected by both the Obama administration and the Supreme Court. Halligan has made these same arguments in amicus briefs as well.
Remind senators that additional concerns about Halligan’s willingness to refrain from judicial activism are prompted by her record of hostility to the death penalty and sympathy for racial preferences and the invention of a constitutional right to same-sex marriage. Even more troubling are her arguments, made while serving as New York’s Solicitor General, that pro-life protestors can be sued for extortion and illegal aliens can sue for back pay. The U.S. Supreme Court rejected both arguments.
Remind senators that nominees to the all-important D.C. Circuit are subject to extra scrutiny. During the Bush Administration, Democrats opposed several magnificently qualified nominees to the D.C. Circuit, including Miguel Estrada, whose nomination was defeated by multiple filibusters, and Peter Keisler, who waited in vain for two years to get a vote in Sen. Leahy’s Judiciary Committee. The seat to which Halligan has been nominated is vacant only because Senate Democrats set the bar so high during the last Administration.
Finally, remind senators that, even if they believe support for controversial nominees may be warranted where judicial vacancies have been declared emergencies, the D.C. Circuit has the opposite problem. It has too many judges for its workload, as Senate Democrats reminded us while holding up Peter Keisler’s nomination. The D.C. Circuit’s number of cases per judge is only about 25% of the average workload in the other 12 circuits and is shrinking.