Guns & Lessons Learned from Halligan

The Committee for Justice congratulates GOP Senators for remaining united today to defeat controversial D.C. Circuit nominee Caitlin Halligan on the Senate floor, where cloture failed by a vote of 51 YEAs to 41 NAYs.  Special thanks to South Carolina’s Lindsey Graham, whose vote was considered in doubt, for contributing to the 41 nays.

Halligan’s hostility to gun rights was the single biggest factor in her defeat. As Gun Owners of America said in a letter of opposition this week, “Halligan’s public hatred for firearms was only matched by her [anti-gun] zealotry inside the courtroom."  For details on Halligan’s disturbing record, see our earlier press release.

CFJ’s Curt Levey explained today why several lessons can be learned from Halligan’s defeat:

Importance of gun rights in judicial confirmation battles

Gun rights have become a pervasive issue in the judicial confirmation process.  It was the key issue in Halligan’s defeat and it’s been on the front burner since the Sotomayor confirmation battle, where nearly every senator in both parties criticized, defended, or tried to counterbalance Sotomayor’s bad Second Amendment record in explaining their vote on confirmation. 

As Mr. Levey said in a 2009 op-ed entitled “Guns Are the New Abortion”:

“[With] the Supreme Court’s 2008 [Heller] decision recognizing the Second Amendment as an individual right … the Justices transferred the theater of war from legislatures to the judiciary. … That’s why … gun owners – their fate tied to the selection of judges in the wake of Heller – [have become] a potent part of the coalition advocating … for judges who strictly interpret the Constitution.”

Newtown has not changed things

Democrats hoped and the media speculated that the national reaction to the Newtown shootings would make Halligan’s campaign against firearms look more sympathetic, thus boosting her chances of confirmation.  They were wrong. On Halligan’s first cloture vote in December 2011, she fell 6 votes short.  She fell 9 votes short on the second cloture vote today. Both times, only one GOP senator – Murkowski (R-AK) – voted for her.

Why did Newtown fail to soften concerns about Halligan’s Second Amendment record? We suspect it’s both because the post-Newtown “fervor” for gun control has been greatly exaggerated and because the prospect of new gun control legislation has made GOP senators more sensitive to the Second Amendment records of judicial nominees who, if confirmed, will determine the constitutionality of any new gun laws.

GOP senators committed to higher standard for DC Circuit nominees

While explaining his vote against Halligan on the Senate floor today, Sen. Mike Lee (R – UT) emphasized that

“The D.C. Circuit is arguably the most important federal appellate court in our country’s judicial system, with primary responsibility to review administrative decisions made by many federal departments and agencies.  It has also served in several instances as a stepping-stone for judges who are later appointed to the Supreme Court. As a result, the Senate has a longstanding practice of scrutinizing nominees to the D.C. Circuit.” 

In applying a higher standard to D.C. Circuit nominees, GOP senators are following a precedent set during the Administration of George W. Bush.  Senate Democrats blocked several Bush nominees to the D.C. Circuit, despite magnificent qualifications acknowledged even by opponents. Those nominees included Miguel Estrada, who – Democratic Judiciary Committee memos revealed –was blocked because Democrats feared he would eventually become the first Hispanic Supreme Court Justice, and Peter Keisler, who waited in vain for two years to get a vote in Sen. Leahy’s Judiciary Committee.

Obama should make a deal:

With four vacancies on the D.C. Circuit, President Obama has an opportunity to not only solve the DC Circuit impasse, but also to begin healing the Bush-era wounds that have made the judicial confirmation process so contentious.  If Obama is serious about filling the four vacancies, he would be wise to make a package deal with Senate Republicans that includes the nomination of one conservative to the circuit – ideally Keisler or Estrada. The good will engendered by such a deal would make confirmation of Obama’s other judicial nominees easier and would send an indisputable signal of bipartisanship at a time when it’s badly needed in Washington.

Consider that George W. Bush did precisely what we’re proposing, selecting Democratic judicial nominees three times to encourage bipartisanship.  Among President Bush’s first batch of appeals court nominees were Barrington Parker, a Clinton appointee to a lower court, and Roger Gregory, an unconfirmed Clinton nominee.  Another unsuccessful Clinton nominee, Helene White of Michigan, was nominated by Bush to the Sixth Circuit in 2008.  All three nominees were quickly confirmed.