MEMO

TO: Interested Parties

FR: Marge Baker, Executive Vice President, People For the American Way

DA: March 6, 2013

RE: The Filibuster of Caitlin Halligan and the Future of the Courts

Today, Senate Republicans defeated a second attempt to end the filibuster of Caitlin Halligan, President Obama’s nominee to fill one of four vacancies on the 11-seat DC Circuit Court of Appeals. The filibuster of Halligan is important for a number of reasons. President Obama has yet to have one of his nominees confirmed to the court, despite the fact that more than one-third of its seats are vacant. The filibuster was premised on manufactured controversy based on willful misrepresentations of Halligan’s record. And, above all, the Halligan filibuster represents the Senate GOP’s concerted effort to stall and block President Obama’s judicial nominees in order to maintain the power of right-wing activists on the courts.

A Respected Nominee With Bipartisan Support

Halligan’s qualifications were unquestionable She has an impressive background in law enforcement and as an expert appellate litigator, serving for six years as New York’s solicitor general and as counsel in more than 50 cases before the Supreme Court. She is currently the general counsel for the Manhattan District Attorney’s Office and had earned the endorsements of law enforcement organizations and leaders including Manhattan DA Robert Morgenthau, NYC Police Commissioner Raymond Kelly, the National District Attorneys Association, the New York Association of Chiefs of Police, the New York State Sheriff’s Association, and the National Center for Women and Policing.

She also had the support of a bipartisan group of renowned appellate advocates, including former Bush judicial nominee Miguel Estrada and top legal officials from the Clinton and Reagan administrations. She received the highest possible rating from the American Bar Association.

Had she been confirmed, Halligan would have become only the sixth woman to sit on the D.C. Circuit in its 120-year history and the Court would have made history as the first appeals court in the country to have as many women judges as men.

An Influential Court Dominated by Right-Wing Activists

The Court of Appeals for the D.C. Circuit is often called the second-highest court in the country because it has the final word on a myriad of federal laws and regulations, from clean air and water protections to workers’ rights to public health measures to consumer protections. The 11-member court currently has only seven active judges: three George W. Bush nominees; one George H.W. Bush nominee; and three Clinton nominees. President Obama has yet to have a judge confirmed to the court, despite the fact that two of its vacancies have been open since he took office. The vacancy that Halligan would have filled was vacated by Chief Justice John Roberts when he was elevated to the Supreme Court back in 2005. Since then, the caseload per active judge on the court has risen by 50 percent .

This escalating vacancy crisis has allowed George W. Bush’s ultra-conservative nominees to play an increasingly influential role on the court. The second President Bush placed a priority on putting right-wing ideologues on the federal courts, and he made the D.C. Circuit a priority. Bush’s first confirmed nominee to the D.C..Circuit, John Roberts, quickly made his way to the Supreme Court. His other three controversial D.C. Circuit judges – Brett Kavanaugh, Janice Rogers Brown and Thomas Griffith—have helped to make this a notoriously ideological court in recent years. For example:

• Last year, a three-member panel of the D.C. Circuit led by Judge Rogers Brown , ruled that requiring graphic, factually accurate warning labels on cigarette packages violates the First Amendment rights of tobacco companies.
• In January, the D.C. Circuit ruled unconstitutional President Obama’s recess appointments to the National Labor Relations Board , and in the process undermined a year’s worth of the Board’s decisions – to say nothing of the legitimacy of hundreds of presidential recess appointments going back to the nineteenth century.
• Last year, a three-judge panel led by Kavanaugh and Griffith struck down important new EPA rules governing air pollution that crosses state lines. The dissenting judge on the panel, a Clinton nominee, wrote that in doing so, “the court disregards limits Congress placed on its jurisdiction, the plain text of the Clean Air Act…and this court’s settled precedent.” Columnist Steven Pearlstein described the opinion as “a judge without a shred of technical training formulating his own policy solution to an incredibly complex problem and substituting it for the solution proposed by experienced experts.”
• The D.C. Circuit struck down a post-financial crash SEC rule that required corporate boards to be more accountable to their shareholders by requiring management to include information about board of director nominees other than its own in proxy material. The Harvard Law Review wrote that, if carried further, the decision “could impose a judicial blockade on complex financial rulemaking, which would impede regulators’ ability to police the marketplace in accordance with congressional intent.”
• Judge Brown has defended the discredited ideology of the Lochner era , when federal courts regularly struck down laws regulating businesses and protecting the health and safety of workers and consumers. Brown writes that courts that routinely uphold democratically enacted economic legislation put “property…at the mercy of the pillagers.”

A Cynical Campaign to Keep Halligan off the Bench

An Obama nominee would restore some long overdue balance to a court that has become an outpost for right-wing judicial activism. And that is the major reason why Senate Republicans are bent on keeping President Obama’s nominee off the bench.

Halligan’s opponents, lacking any legitimate opposition to her nomination, cherry-picked a few items in her record and twisted them beyond recognition. One of Halligan’s most vocal opponents was the National Rifle Association, which objected to the role she played in New York’s suit against gun manufacturers when she was the state’s solicitor general – in other words, they criticize her for advocating the position of her client, the State of New York, whose legal policies were set by the state’s attorney general.

Many of those lobbing this attack against Halligan seem to have had a change of heart since the Bush administration, when a number of Republican senators complained that positions that lawyers took on behalf of their clients should be off-limits in judicial confirmation battles. Discussing positions advocated by then-Supreme Court nominee John Roberts as an attorney on behalf of clients including the Reagan and Bush administrations, Sen. Lindsey Graham could not have been clearer : “Another line of inquiry that's been disturbing to me is that we talk about the clients you represent, whether it be the Ronald Reagan administration or some private sector client, and we tend to hold that maybe unpopular position against the lawyer. There is more and more of that happening. … I really do worry that in the future that if we up here start holding who you represent against you, that young lawyers in the future will pass on the hard cases”

Even Roberts himself stated , “My point is simply this, that in representing clients, in serving as a lawyer, it’s not my job to decide whether that’s a good idea or a bad idea. The job of the lawyer is to articulate the legal arguments on behalf of the client.” Several conservative lawyers testifying on behalf of Roberts made the same argument. For Senate Republicans to jettison an argument they made so forcefully under a different president suggests this is not about principle but about politics.

The other flimsy attack lobbed at Halligan concerns a legal brief she co-wrote in 2009 on behalf of her clients that argued against the legality of indefinite military detention without criminal charge of a U.S. resident suspected of terrorist activities – hardly an extremist position and one that garnered substantial support in the conservative Fourth Circuit. Numerous mainstream groups also filed briefs in support of the petitioner in that case, including 28 former federal judges and Department of Justice officials; former national security officials; former United States diplomats; retired military officers and the National Institute of Military Justice.

The Long-Term Impact on the Courts

Senate Republicans have succeeded in slow-walking the vast majority of President Obama’s judicial nominees, even those whom they ultimately support. Because of this routine obstruction , President Obama’s confirmed first-term judicial nominees were forced to wait an average of three times as long between committee approval and a vote from the full Senate as did Bush’s confirmed first-term nominees. As a result, a high vacancy level has persisted in the federal courts for the entirety of Obama’s presidency, impeding Americans’ access to justice and hindering the president’s efforts to restore balance to the courts.

The long filibuster of Caitlin Halligan is perhaps the most extreme example of this trend. Next week will mark the two-year anniversary of the first time she was approved by the Senate Judiciary Committee and could have had a timely floor vote but for Republican obstruction.

Senate Republicans would clearly prefer federal judges who were selected by Mitt Romney. But the decision as to who nominates our judges rests with the American people, not the Senate Minority Leader, and the American voters have twice elected President Obama. Caitlin Halligan deserved an up-or-down vote from the Senate, not the politically-motivated obstruction she got.

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