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Sheldon W.
Democrat RI

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  • Reservation of Leader Time

    by Senator Sheldon Whitehouse

    Posted on 2013-03-06

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    WHITEHOUSE. Mr. President, I rise today in support of the nomination of Caitlin Halligan to the U.S. Court of Appeals for the District of Columbia Circuit.

    Ms. Halligan is an outstanding nominee with sterling credentials and broad support among the legal community. By the accounts of everyone who has worked with her or observed her work, she is a first-rate legal mind and a tireless worker, with great personal integrity and a thoughtful temperament that is perfectly suited to the Federal bench. Her nomination deserves prompt confirmation.

    Ms. Halligan has spent much of her career as a dedicated and distinguished public servant. She has a strong record in law enforcement, including in her current role as general counsel at the Manhattan District Attorney's Office, an office that investigates and prosecutes 100,000 criminal cases annually.

    She is highly esteemed by the New York and national law enforcement communities. Her nomination has been endorsed by New York City police commissioner Raymond Kelly, former Manhattan district attorney Robert Morgenthau, the National District Attorneys Association, several Republican district attorneys from New York, the New York Association of Chiefs of Police, and the New York State Sheriff's Association, among many others.

    Ms. Halligan is also widely recognized as one of the finest appellate litigators in the country. As solicitor general for the State of New York, she supervised 45 appellate lawyers and represented the State of New York, then-Governor George Pataki, a Republican, and other State officials in both State and Federal courts. She has been counsel of record on nearly 50 cases before the Supreme Court and has argued before that court 5 times. Twenty-one of the top lawyers from across the political spectrum who have worked with Ms. Halligan, including conservatives Miguel Estrada and Carter Phillips, have endorsed her nomination. She was rated unanimously ``well qualified'' by the American Bar Association.

    President Obama first nominated Ms. Halligan in 2010. Despite Ms. Halligan's outstanding qualifications and broad support, our Republican colleagues have refused to grant her an up-or-down vote for over 2 years.

    Some have argued, because of positions that she took in litigation at the behest of a client, that she does not have adequate respect for the second amendment. Yet both at her hearing and in response to written questions, she stated unequivocally that she [[Page S1143]] would faithfully follow and apply the Supreme Court's decision in District of Columbia v. Heller, which held that the second amendment protects an individual right to keep and bear arms for self-defense. When asked whether the rights conferred under the second amendment are fundamental, Ms. Halligan answered, ``That is clearly what the Supreme Court held and I would follow that precedent.'' It doesn't get much clearer than that.

    In 2011 Republicans filibustering her nomination claimed that the caseload of the DC Circuit did not warrant filling that seat because the other judges serving on the court had too few cases. At that time, Ms. Halligan was nominated to fill the ninth seat out of 11 on the DC Circuit.

    Even at the time, that argument was questionable. Senate Republicans confirmed President Bush's nominees for the 9th, 10th, and 11th seats on the DC Circuit without concerns about caseload. That court's caseload has only gone up in since then. Also, the DC Circuit's caseload is uniquely challenging, as the former chief judge of the DC Circuit, Patricia Wald, has explained: 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.

    Even if we accept the argument that the DC Circuit did not need another judge when Ms. Halligan was nominated for the ninth seat, the circumstances have changed. Because an additional vacancy has opened, Ms. Halligan is currently nominated for the eighth seat, meaning there are now four vacant seats on the court. To put it another way, the court is now understaffed by over one-third. At the same time, the Administrative Office of U.S. Courts reports that the caseload per active judge has increased by 50 percent since 2005, when the Senate confirmed President Bush's nominee to fill the 11th seat on the DC Circuit.

    Thus, there is no basis for debate now about whether an additional judge is needed on the D.C. Circuit. With an extra vacancy and a growing caseload, the court considered by many to be second only to the Supreme Court in its importance in our Federal judiciary desperately needs help.

    Luckily, we have the opportunity to send the court an outstanding legal talent in Caitlin Halligan. I urge my colleagues to support her confirmation.

    More broadly, I hope that we can come together and return the Senate to its best traditions of holding up-or-down votes on judicial nominations. We have an opportunity this Congress to move past this obstruction and get back to the proper manner of handling judicial nominations. Doing so will bring much needed assistance to the Federal judiciary, which has been forced to contend with unmanageable judicial vacancy rates. It also will do credit to this institution, which is failing in its duty to confirm Federal judges. We do not deserve the moniker of the ``world's greatest deliberative body'' if we cannot do something as simple as confirming judicial nominations.

    There have been some encouraging signs that we are making real progress in this regard. For instance, the rules reforms that we voted on in a bipartisan manner earlier this year included a provision to shorten the postcloture debate window on district court nominees from 30 hours to a more reasonable 2. This change could dramatically streamline the nominations process without limiting the minority's ability to filibuster a nominee they do not like. It will expire at the end of this Congress, however. I hope that we can come together in bipartisan agreement to extend it permanently and perhaps even expand it to include circuit court nominees like Ms. Halligan.

    Even with this change, there is still much to be done. The nonpartisan Congressional Research Service recently reported that the confirmation percentage for President Obama's nominees is the lowest of any President in the last 36 years. The effects are obvious. The judicial vacancy crisis in this country is real, and it is growing. As Supreme Court Chief Justice John Roberts has said, ``a persistent problem has developed in the process of filling judicial vacancies. . . . This has created acute difficulties for some judicial districts. Sitting judges in those districts have been burdened with extraordinary caseloads.'' As he explained, there is ``an urgent need for the political branches to find a long-term solution to this recurring problem.'' So let's return to the principle that barring ``extraordinary circumstances'' a nominee should receive a prompt up-or-down vote on the floor, and let's confirm the nomination of the outstanding nominee before us today, Caitlin Halligan.

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