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Dianne F.
Democrat CA

About Sen. Dianne
  • Reservation of Leader Time

    by Senator Dianne Feinstein

    Posted on 2013-03-06

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    FEINSTEIN. Mr. President, I rise in strong support of the nomination of Caitlin Halligan to the D.C. Circuit Court of Appeals. As a 20-year veteran of the Judiciary Committee and the first woman to serve on that committee it is my great pleasure to support Ms. Halligan's nomination.

    Ms. Halligan has excelled at every turn in her career. She graduated cum laude from Princeton University in 1988. She received her law degree, magna cum laude, from Georgetown, where she was managing editor of the Georgetown Law Journal and inducted into the Order of the Coif.

    She began her legal career with a clerkship with Judge Patricia Wald on the U.S. Court of Appeals for the D.C. Circuit, the first woman to serve on the D.C. Circuit.

    She then spent a year in private practice at the Washington, DC firm Wiley, Rein, and Fielding, after which she clerked for Justice Stephen Breyer on the U.S. Supreme Court. After another year in private practice, Ms. Halligan entered public service. She went to the Attorney General's Office in the State of New York, first as Chief of the Internet Bureau.

    She rose to become First Deputy Solicitor General and ultimately Solicitor General of the State of New York, the State's top appellate lawyer. During nearly all of Ms. Halligan's time as Solicitor General, George Pataki--a Republican--was Governor. Her job was to represent the State of New York zealously, and by all accounts she did so with skill and dignity.

    Judith Kaye, the former Chief Judge of New York's highest court, writes on behalf of the court's entire bench that ``it was invariably a treat'' to have Ms. Halligan argue before the court.

    In fact, the National Association of Attorneys General awarded her the [[Page S1144]] ``Best Brief Award'' on numerous occasions, including consecutive awards in 2001, 2002, 2003, 2004, and 2005.

    In 2007, she went into private practice to lead the appellate practice at the prestigious New York firm Weil, Gotshal, and Manges.

    She returned to public service in 2010 as the General Counsel of the New York County District Attorney's Office, where she has served for the past 3 years. This office is one of the most distinguished prosecutorial offices in the Nation, and it handles more than 100,000 criminal prosecutions each year.

    Because of her strong background in law enforcement in the State of New York, her nomination enjoys the support of major law enforcement groups, including: The National District Attorney's Association; The National Center for Women and Policing; The New York Association of Chiefs of Police; The New York State Sheriff's Association; and New York Women in Law Enforcement.

    She also enjoys the support of many law enforcement officials from New York, including New York City Police Commissioner Ray Kelly, New York County District Attorney Cyrus Vance, and numerous other County District Attorneys across the State.

    Over the course of her distinguished career, she has served as counsel for a party or amicus in the Supreme Court more than 45 times. She has argued in the Supreme Court herself in five cases, most recently in March 2011. She also has argued or participated in dozens of other appeals in State and Federal courts.

    In short, Ms. Halligan is an accomplished woman whose sterling qualifications are unassailable. She clearly deserves the ``well qualified'' rating from the American Bar Association she has received-- the ABA's highest rating.

    Unfortunately, Ms. Halligan's nomination has been pending for a very long time. She was first nominated to the D.C. Circuit in September 2010, 29 months ago. The seat to which she has been nominated has been vacant since 2005, when Chief Justice Roberts was elevated.

    Last Congress, my Republican colleagues filibustered her nomination, something that I found to be without cause or rationale. I am very hopeful that, in this Congress, reasonable minds will prevail, and we will invoke cloture and confirm Ms. Halligan.

    I understand that the National Rifle Association is opposed to Ms. Halligan's confirmation. Behind the NRA's opposition is the fact that-- while Halligan was New York's Solicitor General, acting at the direction of her superiors--the State pursued public nuisance litigation against gun manufacturers.

    Think about that: if this standard prevails, any time a person represents a State or local government, or the Federal Government, and represents that government on a controversial issue at the direction of its duly-elected leaders, that may jeopardize a later confirmation vote.

    That is not fair. A government lawyer's job is to pursue the government's interest vigorously and to do justice, and that is what Caitlin Halligan has done. She was appointed by the Attorney General to represent the State of New York, while the State had a Republican Governor, George Pataki. Her job was to advance New York's interest, and she did so with vigor at the direction of her superiors. She should not be penalized for it.

    Senator Sessions made this point when the Senate was considering the nomination of now-Judge Brett Kavanaugh to the D.C. Circuit. Senator Sessions said that ``[s]uggesting that service in an elective branch of Government somehow tarnishes a lawyer's reputation would be a terrible message for this body to send to the legal community and to all citizens.'' My colleagues will recall that Judge Kavanaugh had quite an activist record from our side's perspective: he had worked on the Starr Report, which recommended grounds of impeachment of President Clinton; he had worked for George W. Bush during the Florida recount; he then worked in the White House Counsel's office under President George W. Bush.

    In short, while Kavanaugh may have been a fine lawyer, he had an undoubted Republican political pedigree. Yet I carefully considered his background, and I voted to invoke cloture on his nomination, as did many of my Democratic colleagues. Now it is time for our Republican colleagues to do the same on this nomination.

    Last Congress, some of my Republican colleagues argued that the D.C. Circuit's caseload does not justify confirming another judge to the Court.

    The D.C. Circuit has 11 judgeships. Four of them are vacant now--more than a third of the court--and three other judges are currently eligible to go senior, so the D.C. Circuit could soon have only four of its 11 seats filled.

    When my colleagues raised caseload-based objections to Halligan's nomination last Congress, I reminded them that, during the George W. Bush Administration, they voted to fill the 10th seat on the D.C. Circuit twice and the 11th seat once. If confirmed, Halligan would only fill the eighth seat.

    In addition, the D.C. Circuit's caseload per judge has grown substantially just in the last few years. The total number of cases terminated per active judge has grown to 280 up from 184 in 2010. That's more than a 50 percent increase. Similarly, the number of appeals at the Court pending per active judge has also spiked. It was 157 in 2008. Today, it is 203 so it is up by a third.

    This hurts ordinary Americans. Most of the time, the cases heard by the D.C. Circuit are not partisan or ideological. But they are critical to making sure that Federal regulation in almost every area operates predictably and rationally.

    As Former Judge Patricia Wald recently wrote in the Washington Post: The D.C. Circuit hears the most complex, time-consuming, labyrinthine disputes over regulations with the greatest impact on ordinary Americans' lives: clean air and water regulations, nuclear plant safety, health-care reform issues, insider trading and more. These cases can require thousands of hours of preparation by the judges, often consuming days of argument, involving hundreds of parties and interveners, and necessitating dozens of briefs and thousands of pages of record--all of which culminates in lengthy, technically intricate legal opinions.

    Moreover, President Obama has been the only President in nearly four decades not to have a confirmed appointment to the D.C. Circuit. President Ford was the last such President, but there were no vacancies during his Administration, and every other President since Warren Harding, over 90 years ago, had an appointment to this court. I fear my Republican colleagues are treating President Obama differently from other Presidents in this regard.

    I will conclude by simply saying that Ms. Halligan is a woman with sterling credentials, an exemplary record, and a wealth of experience. She has been nominated to a vital court that badly needs her service. I believe she should be confirmed, and I urge my colleagues to vote for cloture and for confirmation.

    The PRESIDING OFFICER (Ms. Heitkamp). The Senator's time has expired.

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