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For Immediate Release
December 6, 2011

Grassley Statement on the Nomination of Caitlin Joan Halligan to be U.S. Circuit Judge for the D.C. Circuit

Prepared Statement of Senator Chuck Grassley
Ranking Member, Senate Committee on the Judiciary
Caitlin Joan Halligan
Nominee to be United States Circuit Judge for the District of Columbia
Tuesday, December 6, 2011

Mr. President, I rise in opposition to the nomination of Caitlin Halligan, the President’s nominee for the United States Circuit Court for the District of Columbia.  I would like to take a few minutes to explain to my colleagues why we should not move forward with this nomination. 

Nominations to the D.C. Circuit deserve special scrutiny.   The Court of Appeals for the D.C. Circuit hears cases affecting all Americans. It is frequently the last stop for cases involving federal statutes and regulations.  Many view this court as second in importance only to the Supreme Court.  And as we all know, judges who sit on the D.C. Circuit are frequently considered for the Supreme Court.  So there is a lot at stake with nominations to this court.
I have a number of concerns regarding Ms. Halligan’s activist record.  There are additional concerns regarding her judicial philosophy and her approach to interpreting the Constitution. 

Let me begin by discussing her record on the Second Amendment.  In 2003, Ms. Halligan gave a speech where she discussed her role in suing gun manufacturers for the criminal acts committed with handguns. 

At the time, here in Congress we were debating the Protection of Lawful Commerce in Arms Act, or as most of us called it, the Gun Liability bill.  Those lawsuits, of course, were based on meritless legal theories, and were specifically designed to drive gun manufacturers out of business. 

As it turns out, while many of us were fighting here in Congress to stop these nuisance lawsuits, Ms. Halligan was pursuing this precise type of litigation, based on the same bogus legal theories, on behalf of the State of New York. 

In New York v. Sturm & Ruger, Ms. Halligan argued that gun manufacturers contributed to a public nuisance of illegal handguns in the state.  Therefore, she argued that gun manufacturers should be liable for the criminal conduct of third parties.  The New York appellate court, however, explicitly rejected her theory.  The court explained that it had “never recognized [the] common-law public nuisance cause of action” that Ms. Halligan advanced.  Moreover, the court correctly concluded that “the legislative and executive branches are better suited to address the societal problems concerning the already heavily regulated commercial activity at issue.” 

While we were debating the gun liability bill, Ms. Halligan delivered a speech where she expressed her strong opposition to that legislation.  She opposed it because it would stop the type of lawsuit she was pursuing.  She said, “[i]f enacted, this legislation would nullify lawsuits brought by nearly 30 cities and counties –including one filed by my office—as well as scores of lawsuits brought by individual victims or groups harmed by gun violence . . . . Such an action would likely cut off at the pass any attempt by States to find solutions – through the legal system or their own legislatures – that might reduce gun crime or promote greater responsibility among gun dealers.” 

Later in that same speech, Ms. Halligan expressed her view of the law and legal system.  She said, “courts are the special friend of liberty.  Time and time again we have seen how the dynamics of our rule of law enables enviable social progress and mobility.”

I find this statement troubling, especially as it relates to the nuisance lawsuits against gun manufacturers.  Those lawsuits are a prime example of how activists on the far left try to use the courts to affect social policy changes that they were unable to achieve through the ballot box.  That is why I believe those lawsuits represented not only bad policy, but more broadly, an activist approach to the law.

I am also concerned about Ms. Halligan’s views on the War on Terror and the detention of enemy combatants.  This is especially troublesome because Ms. Halligan is a nominee for the D.C. Circuit, where many of these issues are heard. 

In 2004, Ms. Halligan was a member of a New York City Bar Association that published a report entitled “The Indefinite Detention of ‘Enemy Combatants’ and National Security in the Context of the War on Terror.”  That report argued there were constitutional concerns with the detention of terrorists in military custody.  It also argued vigorously against trying enemy combatants in military tribunals.  Instead, it argued in favor of trying terrorists in civilian, Article III courts. 

Now, as I said, Ms. Halligan is listed as one of the authors of that report.  But, when it came time to testify at her hearing, Ms. Halligan tried to distance herself from the report.  She testified that she did not become aware of the report until 2010.  In a follow-up letter after her hearing, Ms. Halligan did concede that “it is quite possible that [a draft of the report] was sent to me,” but that she could not recall reading the report. 

I recognize that memories fade over time.  But, as I assess her testimony, I think it is noteworthy that at least 4 other members of that Committee abstained from the final report.  Ms. Halligan did not. 

I would also point out that she co-authored an amicus brief before the Supreme Court in the 2009 case of Al-Marri v. Spagone.  Ms. Halligan’s brief in that case took a position similar to the 2004 report with respect to military detention of terrorists.  In that case, she argued that the Authorization for Use of Military Force did not authorize the seizure and indefinite military detention of a Lawful Permanent Resident alien who conspired with Al-Qaeda to execute terror attacks on the United States.

The fact that Ms. Halligan co-authored this brief, pro bono, suggests to me that she supported the conclusions reached by the 2004 report.  And again, this issue is particularly troublesome for a nominee to the D.C. Circuit, where many of these questions are heard. 

There are a number of other aspects of Ms. Halligan’s record that concern me.  For instance, she authored an informal opinion on behalf of Attorney General Spitzer regarding New York’s Domestic Relations Law.  That opinion invoked a theory of an evolving Constitution. 

As New York’s Solicitor General, Ms. Halligan was responsible for recommending to Attorney General Spitzer that the state intervene in several high profile Supreme Court cases.  She filed amicus briefs that consistently took activists positions on controversial issues such as abortion, affirmative action, immigration, and federalism. 

For instance:
-In Scheidler v. National Organization for Women, she supported NOW’s claim that Pro-Life groups had engaged in extortion. 

-In the twin affirmative action cases of Grutter v. Bollinger and Gratz v. Bollinger, she argued that the use of race in college and law school admissions was not only appropriate, but constitutional.

-In Hoffman Plastics Compounds v. NLRB, she argued that the NLRB should have the authority to grant back pay to illegal aliens, even though federal law prohibits illegal aliens from working in the United States. 

- Ms. Halligan represented New York in Massachusetts v. Environmental Protection Agency, where a number of states argued the Clean Air Act authorized and required the EPA to regulate automobile emissions and other “greenhouse gases” associated with “climate change.”  
These are just some of my concerns regarding the nominee’s judicial philosophy and her approach to interpreting the Constitution. 

Based on her record, I simply do not believe she will be able to put aside her long record of liberal advocacy and be a fair and impartial jurist. 

Mr. President, yesterday, before the votes on the judicial nominations we confirmed, I made a few remarks regarding the history of this seat.  I would like to briefly review that again as we approach this vote.  It may come as a surprise to some, but this seat has been vacant for over six years.  It became vacant in September 2005 when John Roberts was elevated to Chief Justice of the United States.  But it has not been without a nominee for all of that time.

In June of 2006, President George W. Bush nominated an eminently qualified individual for this seat, Peter Keisler.  Mr. Keisler was widely lauded as a consensus, bipartisan nominee.  His distinguished record of public service included service as Acting Attorney General.  Despite his broad bipartisan support and qualifications, Mr. Keisler waited 918 days for a committee vote that never came. 

But Mr. Keisler was not the only one of President Bush’s nominees to the D.C. Circuit to receive a heightened level of scrutiny.  In fact, when President Bush was President, his nominees to the D.C. Circuit did not simply receive heightened scrutiny, but were subjected to every conceivable form of obstruction. 

Those of us who were here remember those debates well.  Miguel Estrada, John Roberts, Tom Griffith, Brett Kavanaugh, Peter Keisler, and Janice Rogers Brown – all of these nominees had difficult and lengthy processes.  This included delays, multiple filibusters, multiple hearings, boycotting mark-ups so we would not have a quorum to vote, invoking the two-hour rule during committee mark-ups, and other forms of obstruction.

I have not suggested that we repeat all of the tactics the other side employed during the last administration.  I do believe, however, it is important to remind my colleagues of the precedents the other side established for nominees to the D.C. Circuit. 

There is one other relevant fact that I would like to briefly discuss in connection with this vote, and that is the workload of the D.C. Circuit. 

When Peter Keisler was nominated to this same seat, my friends on the other side objected to even holding a hearing for the nominee, based on concerns about the workload of the D.C. Circuit.  During Mr. Keisler’s hearing, one of my Democrat colleagues summarized the threshold concerns.  He said:

“Here are the questions that just loom out there: 1) Why are we proceeding so fast here?  2) Is there a genuine need to fill this seat?  3) Has the workload of the D.C. Circuit not gone down?  4) Should taxpayers be burdened with the cost of filling that seat?  5) Does it not make sense, given the passion with which arguments were made only a few years ago, to examine these issues before we proceed?”

I have not heard these same concerns expressed by my friends on the other side with respect to Ms. Halligan’s nomination.  But that does not mean that these issues have gone away. 

Statistics from the Administrative Office of the U.S. Courts show that caseloads on the D.C. Circuit have decreased markedly over the last several years.  This decrease is evident in both the total number of appeals filed and the total number of appeals pending.  Specifically, the total number of appeals filed decreased by over 14 percent between 2005, when 1,379 appeals were filed, and 2010, when 1,178 appeals were filed. 

The workload decline is also demonstrated in the per-panel and per-judge statistics.  Filings per-panel and filings per-judge show a decline of nearly 7 percent during this period.  Pending appeals per-panel dropped over 9 percent. 

When you examine the caseload statistics in relation to the other circuit courts, the D.C. Circuit ranks last in nearly every category. 

For instance, the D.C. Circuit has the fewest total appeals filed per-panel, and only half as many appeals filed per-panel as the Tenth Circuit, which has the second fewest in the country.

They have the fewest number of appeals terminated per-judge.  And again, they have roughly half as many terminations per-judge as the second least busy circuit, the Tenth Circuit.

They have the fewest signed written decisions per active judge, with 57.  By way of comparison, the Second Circuit has nearly 5 times as many, with 270 per active judge, and the Tenth Circuit has roughly 4 times as many, with 240.

They have the fewest total appeals terminated per panel, with 347.  By way of comparison, the Eleventh Circuit had over 4 times as many total appeals terminated in 2010, with 1574.  The Ninth Circuit had nearly 4 times as many, with 1394.  And the Second and Fifth Circuits each had 1329.  

Given these statistics, we should be having a discussion on reducing the staffing for this court, not filling a vacancy.  This seat is not a judicial emergency.  And with our massive debt and deficit, I don’t understand why we would be spending our time and resources on this highly controversial nomination.   

Given the concerns I have about Ms. Halligan’s record on the Second Amendment, the war on terror, and other issues, my concerns regarding her activist judicial philosophy, and the court’s low workload, I oppose this nomination.  I urge my colleagues to do the same.

I would note a number of organizations have expressed their opposition to this nomination including:

-American Conservative Union
-The National Rifle Association
-Gun Owners of America
-Citizens Committee for the Right to Keep and Bear Arms
-Committee for Justice
-Concerned Women for America
-The American Center for Law and Justice
-Heritage Action
-Liberty Counsel
-the Family Research Council
-and the Eagle Forum,

among others. 

I yield the floor.