In an editorial today, the Washington Post urged the Senate to confirm Caitlin Halligan to serve on the D.C. Circuit Court of Appeals. Halligan was originally nominated by President Obama in September 2010 and was approved by the Senate judiciary committee seven months ago.
Ms. Halligan has had a distinguished career and deserves to be confirmed. A graduate of the Georgetown University Law Center, she clerked for D.C. Circuit Judge Patricia M. Wald and later for Supreme Court Justice Stephen Breyer. She has served as head of the appellate practice at a top New York law firm, as solicitor general in that state and now as general counsel for the New York County District Attorney’s Office in Manhattan. The American Bar Association gave Ms. Halligan a unanimous well-qualified rating. The Senate Judiciary Committee approved her nomination seven months ago; she has been waiting for a floor vote ever since.
While it is true that caseloads have been inching downward at the D.C. Circuit, the decline does not take into account the complexity and scope of the cases that land at the court. They include direct appeals involving federal regulatory decisions and national security matters, including cases stemming from the detentions at the U.S. naval base in Guantanamo Bay, Cuba.
Halligan has come under fire from the Right for work she has done as the Solicitor General of New York, where she was representing the interests of a client, rather than her own. Judith Schaeffer at the Constitutional Accountability Center writes:
Nonetheless, in a completely partisan action, every Republican on the Judiciary Committee voted against Ms. Halligan’s confirmation on March 10. Ranking Member Charles Grassley seized on aspects of Halligan’s record that he believes suggest she holds progressive views on certain legal topics. Apart from the fact that such views would hardly be disqualifying, these arguments against Ms. Halligan, as Committee Chairman Patrick Leahy has pointed out, are largely based on her work as a lawyer for a client — primarily as the Solicitor General of New York. It is always very dangerous to attribute to a lawyer positions taken on behalf of a client; all lawyers are required to represent their clients’ interests zealously, and they violate their ethical obligations if they fail to do so.
Moreover, Ms. Halligan’s conservative opponents have been engaged in cherry-picking through her record. As with most if not all attorneys who have had the great honor of serving as the lawyer for a State or other governmental entity dealing with a myriad of legal and political concerns and interests, Ms. Halligan’s record is replete with arguments made on behalf of her clients that could be characterized as “conservative,” along with others that could be characterized as “liberal.”
Linda Greenhouse of the New York Times examined the other right-wing charge leveled against Halligan:
As far as I know, Ms. Halligan has not been an activist for any cause. So what could Republican senators possibly hold against her? Nothing, it turns out, except excellence and career potential. Conservative bloggers floundered around trying to come up with something. A National Review blogger was reduced to accusing her of “left-wing extremism” for having been one of three dozen members of a committee of the Association of the Bar of the City of New York that issued a report in early 2004 critical of the Bush administration’s Guantanamo Bay detention policies.
As it happens, this report has been sitting on my shelf for the past seven years. Not having looked at it in quite a while, I turned to the conclusion on page 153 to see how exactly how extreme it was. Anyone who finds the concluding paragraphs to represent left-wing extremism has been living in a different universe:
"The Constitution is not a ‘suicide pact,’ as a Supreme Court justice once famously declared. But neither is it a mere compact of convenience, to be enforced only in times of civic tranquility. It should take far more than the monstrous brutality of a handful of terrorists to drive us to abandon our core constitutional values. We can effectively combat terrorism in the United States without jettisoning the core due process principles that form the essence of the rule of law underlying our system of government.
Insistence on the rule of law will not undermine our national security. Abandoning the rule of law will threaten our national identity."
Senate Republicans have been stalling Halligan’s nomination for seven months. It’s time to finally put it to an up or down vote.