Prepared Statement of Senator Chuck Grassley
Ranking Member, Senate Judiciary Committee
On the nomination of Caitlin Halligan, to be United States Circuit Judge for the District of Columbia Circuit
Wednesday, March 6, 2013
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 change our prior position regarding this nomination. It was previously rejected and should be rejected again.
Before I talk about Ms. Halligan’s record, I want to comment on the process. While I recognize the Majority Leader’s right to bring up this nomination, I question why we are spending time on a politically charged and divisive nomination. I wish the Senate instead would focus on the critical fiscal, national security and domestic issues we face.
The Senate determined, more than a year ago, that this nomination should not be confirmed. Rather than accepting the Senate’s decision, the President has renominated Ms. Halligan. It is time for the President and Senate Democrats to accept the fact that this nomination is not going to be confirmed by the Senate. We need to move on.
It is well understood and accepted that 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. This is a court where we can least afford to confirm an activist judge.
I have a number of concerns regarding Ms. Halligan’s views that indicate she will be an activist judge. There are concerns regarding her judicial philosophy and her approach to interpreting the Constitution. Her stated view that courts seek “to solve problems and not just to adjudicate them” indicates a willingness to abuse the role of a judge, should she be confirmed. She has advocated for an “evolving standard” of the Constitution, indicating a judicial philosophy that embraces the notion of a living Constitution. In adopting the “living Constitution” theory of interpretation, judges routinely substitute their own personal views in place of what the Constitution demands.
I want to share with my colleagues why I have concluded that Ms. Halligan would approach judging with an activist bent. Let me give just a couple examples, beginning with her record on the Second Amendment.
In 2003, Congress was debating the Protection of Lawful Commerce in Arms Act, or as most of us called it, the Gun Liability bill. At the time, gun manufacturers were facing lawsuits based on meritless legal theories. This frivolous litigation was specifically designed to drive gun manufacturers out of business.
As it turns out, while many of us – both Republicans and Democrats – were fighting here in Congress to stop these lawsuits, Ms. Halligan was pursuing this precise type of litigation in the State of New York.
In New York v. Sturm & Ruger, Ms. Halligan advanced the novel legal theory that gun manufacturers, wholesalers and retailers contributed to a “public nuisance” of illegal handguns in the state. Therefore, she argued, gun manufacturers should be liable for the criminal conduct of third parties.
Some of my colleagues have argued that we should not consider this aspect of Ms. Halligan’s record, because at the time she was working as the Solicitor General of New York. But, no one forced Ms. Halligan to approve and sign this brief. No one compelled her to advance a completely frivolous legal theory.
I believe a close examination of Ms. Halligan’s record indicates she was more than just an advocate. She was using the full weight of her office to advance and promote a political agenda masked by a legal doctrine that is well outside of the legal mainstream.
In the case I just mentioned, which was the first of two cases Ms. Halligan was involved in regarding gun manufacturers, the New York state appellate court found her argument to be completely meritless, and explicitly rejected her theory.
The court went so far as to say that it had “never recognized [the] common-law public nuisance cause of action” that Ms. Halligan advanced, and that it would be “legally inappropriate” to permit the lawsuit to proceed. Moreover, far from accepting Ms. Halligan’s invitation to legislate from the bench, the court properly concluded that “the Legislative and Executive branches are better suited to address the societal problems concerning the already heavily regulated commercial activity at issue.”
I will remind my colleagues that Ms. Halligan was pursuing this legal theory at the same time we were debating the gun liability bill here in Congress. There is no question that the dubious legal theories she was advancing in court reflected her own personal views, not just a position she was advocating on behalf of a client.
In a speech Ms. Halligan delivered on the subject in May of 2003 she said she opposed the legislation being considered by Congress because, “[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 are 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.
Now, as I said, the state appellate court rejected her legal theory, and Congress subsequently passed legislation – by a wide bipartisan margin – to stop those lawsuits. But Ms. Halligan still forged ahead. In 2006, notwithstanding the fact the Congress had passed tort reform in this area, she attempted once again to revive the ability of states to pursue Gun manufacturers. Only this time, she advanced her claims in federal court, arguing the legislation Congress passed was unconstitutional. Fortunately, the federal appellate court rejected her legal theory as well.
Ms. Halligan’s record of taking far left and legally untenable positions is not limited to her legal briefs in gun cases. Another example of how she crossed the line from advocate to activist is Scheidler v. National Organization for Women. In that case she argued for an expansive definition of extortion under the Hobbs Act. Her support of NOW’s claim that pro-life groups had engaged in extortion was rejected by 8 Justices of the Supreme Court, including Justice Ginsburg - one of the most liberal justices on the Court.
There are a number of other aspects of her record that I find problematic. For instance, Ms. Halligan’s views on the War on Terror and the detention of enemy combatants are 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.
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 four other members of that bar association committee abstained from the final report. Ms. Halligan did not.
I would also point out that several years later 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 additional aspects of Ms. Halligan’s record that concern me.
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.
These are just some of my concerns regarding the nominee’s judicial philosophy and her approach to interpreting the Constitution. These are neither trivial nor inconsequential grounds on which to oppose her nomination.
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.
Supporters argue, that out of a sense of “fairness,” we should confirm Ms. Halligan. They note that her nomination has been pending for over two years.
Let me remind my colleagues that while this seat has been vacant for over seven years, it has not been without a nominee for all of that time.
Following the elevation of then-Circuit Judge John Roberts in 2005, 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. There was no clamor from the other side that we needed to fill the vacancy. There was no demand that Mr. Keisler be afforded an up or down vote. So it seems to me that too often, with my Democratic colleagues, “fairness” is a one-way street.
When the Democrats refused to consider Mr. Keisler’s nomination – or even to give him a Committee vote – the other side justified their actions based on the D.C. Circuit caseload. So, I would like to make a few comments about how the current caseload of the D.C. Circuit stacks up against the caseload that existed when Mr. Keisler’s nomination was subjected to a “pocket filibuster.”
Before doing so, I would again emphasize that given Ms. Halligan’s record on a host of controversial issues, the case for rejecting her nomination would remain, regardless of the number of vacancies or the court’s workload. However, since some of my colleagues are declaring a “judicial emergency” on the D.C. Circuit Court, let me set the record straight. Contrary to assertions we have recently heard regarding the court’s workload, since 2005, the D.C. caseload has actually continued to decline. The total number of appeals filed is down over 13 percent. The total number of appeals pending is down over 10 percent; filings per panel are down almost 6 percent.
Compared to other Courts of Appeals, the D.C. Circuit caseload measured by number of appeals pending per panel is 54 percent less than the national average. Filings per judge are also significantly lower than for the rest of the courts. While the national average of filings per active judge is 361, the D.C. Circuit is less than half, at 170 filings per active judge. And if you take into consideration the fact that the D.C. Circuit now has 6 senior judges, all of whom continue to hear cases and write opinions, there is a 26 percent decrease in case filings per judge on the court since 2005. So by any meaningful measure, the D.C. Circuit’s workload pales in comparison to the other circuit courts.
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.
Finally, I would note a number of organizations have expressed their opposition to this nomination. I will submit that list for the record and yield the floor.
American Conservative Union
9/11 Families for a Safe & Strong America
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
Liberty Counsel Action
Family Research Council
Center for Judicial Accountability
Republican National Lawyers Association
Judicial Action Group
Susan B. Anthony List
Americans United for Life Action
Faith and Freedom Coalition