Former New York Solicitor General Caitlin Halligan withdrew her nomination to the D.C. Circuit Court of Appeals in the face of Republican opposition, thereby surrendering her spot on the “fast-track” to the Supreme Court.
“I am deeply disappointed that even after nearly two and a half years, a minority of Senators continued to block a simple up-or-down vote on her nomination,” President Obama said in a statement on Halligan’s withdrawal yesterday. “The D.C. Circuit is considered the Nation’s second-highest court, but it now has more vacancies than any other circuit court. This is unacceptable.”
The prominence of the D.C. Circuit stoked Republican opposition to Halligan’s nomination. “Everybody that’s appointed to D.C. circuit is on a fast track to the Supreme Court, so you always have to do a double-scrutiny,” a Senate Republican aide told The Washington Examiner. The withdrawal comes about two weeks after Republicans blocked a vote on her nomination, for the last time.
The GOP’s top attorney-turned-senators argued that Halligan would be a liberal activist on the bench. “She is a skilled litigator with a distinguished career, but she has repeatedly advanced extreme legal theories inconsistent with judicial restraint,” Sen. Ted Cruz, R-Texas, said in a March 6 statement explaining why he voted against cloture (which thus set a 60-vote threshold for Halligan’s nomination). “Whether on guns, marriage, or the legal standards applicable to alien terrorists, Ms. Halligan’s aggressive and consistent litigation agenda shows that she is not a suitable choice to serve on the critically important D.C. Circuit court.”
Sen. Mike Lee, R-Utah, focused on Halligan’s record on gun control. “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,” Lee said on the Senate floor. “Three years later in 2006, Ms. Halligan filed another brief arguing that handgun manufacturers were guilty of creating a public nuisance.”
“Such arguments amount to an invitation for courts to engage in sweeping judicial activism; and the positions she took are both bewildering and flatly inconsistent with the original understanding of the Second Amendment rights that all Americans enjoy,” he concluded.
Democrats denied that Halligan is a radical. “First of all, it is not fair to attribute to [Halligan] positions that she was asked to take as a lawyer, in an office where she represented the state of New York and the attorney general, namely me, and the substantive judgments I had to make,” former Attorney General Eliot Spitzer, D-N.Y., said in 2011. “But second, the positions she took were mainstream, reasoned opinions and for the Republicans to filibuster her based upon them is simply wrong.”
The Democratic Policy and Communications Center, led by Sen. Chuck Schumer, D-N.Y., noted that “prominent Republican lawyers including Miguel Estrada and Carter Phillips wrote that she is a ‘first-rate lawyer and advocate’ who is ‘well respected and highly regarded as a leader of the legal profession.’”
Another Republican aide suggested that their success in thwarting Halligan’s nomination moves the goal posts to the right with respect to President Obama’s next nominee to the Supreme Court. In the meantime, conservatives retain a 5-4 majority on the D.C. Circuit.