I rise today to speak in opposition to the nomination of Caitlin Halligan to be a Circuit Judge on the U.S. Court of Appeals for the District of Columbia Circuit.
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 closely scrutinized nominees to the D.C. Circuit. And when evaluating particular nominees we have also carefully considered the need for additional judges on that court.
In July 2006, President Bush nominated an eminently qualified individual, Peter Keisler, to fill a seat on the D.C. Circuit. Mr. Keisler is among the very finest attorneys in the country. Because of his non-ideological approach to the law, Mr. Keisler enjoys broad, bipartisan support throughout the legal profession.
Despite these unassailable qualifications, Democratic senators blocked his nomination. He did not receive any floor consideration whatsoever—not even a cloture vote—and his nomination languished in the Judiciary Committee.
At the time, a number of Democratic senators sent a letter to the Judiciary Committee Chairman arguing that a nominee to the D.C. Circuit, “should under no circumstances be considered – much less confirmed – before we first address the very need for that judgeship.” These senators specifically argued that the D.C. Circuit’s comparatively modest caseload in 2006 did not justify the confirmation of an additional judge to that court.
Five years have passed and Ms. Halligan has been nominated to that very same seat on the D.C. Circuit. But the court’s caseload remains just as minimal as it did then. According to the Administrative Office of U.S. Courts, the D.C. Circuit caseload per judge is approximately one-fourth that of most other Courts of Appeals.
In each of the past two years, the D.C. Circuit has cancelled regularly scheduled argument dates due to the lack of pending cases. For several years, the court has experienced a decline in workload in terms of total filings, actions per active judge, and pending appeals. Indeed, since 2006 — when Democrats blocked Mr. Keisler’s nomination — the total number of appeals filed in the D.C. Circuit has decreased by 12 percent.
According to the Democrats’ own standards – and particularly when there are judicial emergencies in other courts across the country – now is not the time to confirm another judge to the D.C. Circuit. And it is most certainly not the time for us to consider confirming a controversial nominee with a record of extreme views of the law and Constitution.
Many of colleagues have discussed these views, so I will limit myself this morning to just one example. In 2003, while serving as Solicitor General of New York, Ms. Halligan approved and signed a legal brief arguing that handgun manufacturers, wholesalers, and retailers should be held liable for criminal actions that individuals commit with the guns. Three years later in 2006, Ms. Halligan filed a brief alleging that handgun manufacturers were guilty of creating a public nuisance.
Such an activist approach is both bewildering and flatly inconsistent with the original understanding of the Second Amendment rights that Americans enjoy.
In conclusion, as measured by the Democrats own standards and their own prior actions, now is not the time to confirm another judge to the D.C. Circuit. And it is certainly not the time to consider such a controversial nominee for that important court. For these reasons I cannot support Ms. Halligan’s nomination and urge my colleagues to oppose her confirmation.