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Mitch M.
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  • Reservation of Leader Time

    by Senator Mitch McConnell

    Posted on 2013-03-06

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    McCONNELL. Mr. President, today the Senate will vote on cloture on the nomination of Caitlin Halligan to the U.S. Court of Appeals for the DC Circuit. I will again oppose invoking cloture on the nomination, and I will explain why.

    In short, Ms. Halligan's record of advocacy and her activist view of the judiciary lead me to conclude she would bring that activism right to the court. As I have said many times before, the role of a judge in our system is to determine what the law says, not what they or anybody else wants it to be. That is not Ms. Halligan's view of the courts. She views them as a means to ``enable enviable social progress and mobility''--to ``enable enviable social progress and mobility'' with the judges, not the American people, using their office to determine what ``progress'' is ``enviable.'' That is the view of Ms. Halligan.

    When she was in a position of authority, she put that activist view into practice time and time again. On the subject of second amendment rights, Ms. Halligan, as solicitor general of New York, advanced the dubious legal theory that those who make firearms should be liable for the criminal acts of third parties who misuse them.

    Imposing potentially massive tort liability against the makers of a lawful product because of the criminal acts of someone else did not seem much like ``enviable social progress'' to Randall Casseday, who is with Kahr Arms, which sells firearms to the New York City Police Department. Here is what he said: I can't see how Kahr Arms can be responsible for misuse of its product. I don't see how you can do that. One lawsuit would put us out of business.

    Fortunately, the State court in New York followed the law and rejected Ms. Halligan's entreaty that it make up new law in order to achieve the so-called social progress she envisioned. The court observed that it had never recognized the novel claim pursued by Ms. Halligan, nor had other courts, for that matter. Moreover, the State court called what she wanted it to do to manufacturers of a legal product ``legally inappropriate'' and said the power she wanted the courts to assert was the responsibility of ``the Legislative and the Executive branches.'' So out of bounds were the types of frivolous lawsuits pursued by Ms. Halligan that Congress did something rare: It actually passed tort reform to stop them, and it passed by a wide bipartisan majority. In her zeal for these frivolous lawsuits, Ms. Halligan then chose to criticize the Congress for having the temerity to exercise its policymaking responsibility to protect a lawful industry. However, she didn't just criticize the Congress for trying to stop the frivolous lawsuits she was pursuing, she chose to exaggerate the scope of the bill by claiming that it would stop State legislatures by ``cutting off at the pass any attempt to find solutions that might reduce gun crime.'' This assertion was false. It strains credulity that nearly half the Senate Democratic Conference who supported the legislation would vote not only for tort reform but would vote for Federal legislation that would block States from passing anything at all related to gun crime. Her mischaracterization of the legislation underscores her zeal for the frivolous lawsuits she was pursuing.

    True to the adage ``frequently wrong but never in doubt,'' Ms. Halligan was undeterred. Having had both her State court and the Congress repudiate her novel legal theories, Ms. Halligan then filed an amicus brief in the Second Circuit Court of Appeals in another frivolous case against firearms manufacturers. This time she claimed the new law Congress passed was unconstitutional. Not surprisingly, she lost that case too.

    Ms. Halligan's stubborn pursuit of frivolous claims against gun manufacturers is a textbook example of judicial activism--using the courts to achieve a political agenda no matter what the law says.

    Her pursuit of losing legal theories in the service of her own personal views [[Page S1140]] doesn't stop there. On enemy combatants, Ms. Halligan signed a report as a bar association member that asserted that the authorization for use of military force did not authorize long-term detention of enemy combatants. In 2005 the U.S. Supreme Court ruled in Hamdi v. Rumsfeld that the President did, in fact, have this authority. Yet despite this precedent, Ms. Halligan chose to file an amicus brief years later arguing that the President did not possess this legal authority that the Supreme Court had already upheld.

    On immigration, Ms. Halligan filed an amicus brief in the Supreme Court arguing that the National Labor Relations Board should have the legal authority to grant back pay to illegal aliens. However, Federal law prohibits illegal aliens from working in the United States in the first place. Fortunately, the Court sided with the law and disagreed with Ms. Halligan on that novel legal theory as well.

    The point here is that even in cases where the law is clear or the courts have already spoken--including the Supreme Court--Ms. Halligan chose to get involved anyway by using arguments that had already been rejected either by the courts, the legislature, or, in the case of frivolous claims against the gun manufacturers, by both.

    In other words, Ms. Halligan has time and again sought to push her views over and above those of the courts or those of the people as reflected in the law. Ms. Halligan's record strongly suggests she would not view a seat on the U.S. appeals court as an opportunity to adjudicate, evenhandedly, disputes between parties based on the law but instead as an opportunity to put her thumb on the scale in favor of whatever individual or group or cause she happened to believe in.

    I have nothing against this nominee personally. I just believe, as I think most other Americans do, that we should be putting people on the bench who are committed to an evenhanded interpretation of the law so that everyone who walks into the courtroom knows he or she will have a fair shake. In my view, Ms. Halligan is not such a nominee.

    I will be voting against cloture on this nomination, and I urge my colleagues to do the same.

    Our decision to do so is not unprecedented--far from it. Many of our Democratic colleagues who are expressing shock and utter amazement that we denied cloture on Ms. Halligan's nomination for a second time felt no compunction about denying cloture on Miguel Estrada's nomination to the very same court. They denied nomination for him seven times, in fact, even though--unlike Ms. Halligan's record--Mr. Estrada's background did not evidence a penchant for judicial activism.

    We have begun this Congress by making progress on filling judicial vacancies. I am happy to resume working with the majority on doing so, but because of her record of activism, giving Ms. Halligan a lifetime appointment to the DC Circuit is a bridge too far.

    I yield the floor.

    The ACTING PRESIDENT pro tempore. The Senator from New York.

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