10:15 am Dec. 7, 2011
Yesterday afternoon, in a move that could have far-reaching consequences for the federal judiciary, Senate Republicans blocked the appointment of Caitlin Halligan to the D.C. Circuit Court of Appeals, branding her as a judicial "activist" unsuited to sit on the country's second-highest court.
Halligan, 44, currently serves as the general counsel to the Manhattan district attorney's office, but her opponents have mostly focused on her six years as the state's solicitor general under Attorney General Eliot Spitzer, when it was Halligan's job to make the legal case for the positions advocated by the office, like holding handgun manufacturers accountable for shootings, and recognizing certain same-sex marriages.
"Ms. Halligan’s record of advocacy for an activist view of the judiciary and her legal career leads any reasonable person to conclude that she would bring that activism to the court,” said the Republican minority leader Mitch McConnell on the Senate floor, shortly before she fell six votes shy of the 60 votes required to end a filibuster. (Senator Lisa Murkowski of Alaska was the lone Republican to vote in Halligan's favor.)
In a phone interview after the vote, Spitzer said it was an "outrage" that Republicans had blocked an "absolutely spectacular lawyer."
"First of all, it is not fair to attribute to her positions that she was asked to take as a lawyer, in an office where she represented the state of New York and the attorney general, namely me, and the substantive judgments I had to make," he said. "But second, the positions she took were mainstream, reasoned opinions and for the Republicans to filibuster her based upon them is simply wrong."
In addition to her work on guns and gay marriage, her conservative critics have also cited her membership in the Association of the Bar of the City of New York’s Committee on Federal Courts, which issued a report in 2004, criticizing the long-term detention of enemy combatants. Halligan was one of several dozen signatories, and she testified that the report does not reflect her own views.
Her opponents have also latched on to a line in a 2003 speech, when Halligan said "courts are the special friend of liberty." She told senators on the Judiciary Committee it was a speech "given in the attorney general's stead," and that she didn't recall exactly what was in her head at the moment she delivered it. Spitzer said he didn't remember that exact line, but that it shouldn't matter.
"I don't remember it, but my goodness, somebody disagrees with that?" he said with an incredulous laugh. "Let's challenge the premise, I mean, this is how they frame the debate, 'Oh my goodness, she said that?' Yes, she said it. It's right. Courts protect our liberties. That's why we created Article III of the Constitution, and gave them life tenure. That's why courts decided Roe v. Wade. That's why courts decided Brown versus Board of Ed. That's what courts do. That's what judges do.
"My goodness if the Republican Party finds that objectionable, they've got a more serious problem than I thought, you know? This is, 'Oh my goodness she said it,' and we all quake and say, 'How do we explain it away?' Don't explain it away. She said it, and she said it with pride, and it's right. This is how twisted our politics has become. I just wish people would stand up and say it," he said.
Halligan is President Obama's first, and so far only, nominee to the D.C. Circuit, which is widely regarded as the most powerful of the appellate courts owing to its jurisdiction over federal agencies, and is generally considered a stepping-stone to the Supreme Court.
In May, Republicans blocked the nomination of Goodwin Liu to the Ninth Circuit Court of Appeals, citing his liberal record at the University of California at Berkeley and his criticism of Samuel Alito. That reopened a breach between the two parties over the confirmation process, shortly after 11 Senate Republicans had joined Democrats to break a filibuster on another Obama nominee.
Senator Charles Schumer, who spoke in support of Halligan's nomination, suggested that yesterday's vote might have broken a 2005 agreement by the so-called Gang of Fourteen, in which the parties agreed to set aside most of their objections to judicial nominees.
Spitzer said the filibuster was evidence of a much larger problem in the Republican Party, and compared it to the Republicans' unwillingness to appoint Elizabeth Warren as head of the new Consumer Protection Bureau.
"Politics is being destroyed by outrageous behavior on the part of the Republican Party," he said. "This is a party that doesn't believe in evolution, doesn't believe in science, doesn't believe in the laws of physics, it is absolutely outrageous."
The D.C. Circuit Court currently has two unfilled positions, and Halligan's nomination has become something of a cause for liberal Democrats, while Republicans have hinted that they might leave them unfulfilled, on account of a decreasing caseload.
Halligan's current boss, District Attorney Cy Vance, said he hoped the confirmation might still come.
"Caitlin is a superb and experienced lawyer, with deep legal experience and sound judgment," Vance said through a spokesperson. "She is precisely the kind of lawyer who would serve the country well as a federal appellate judge, and it is unfortunate, short-sighted and a loss to our country that certain Senators have blocked her nomination to the D.C. Circuit. I hope they will act swiftly to confirm her in the future."