Caitlin Halligan

  • May 22, 2013

    by Russell Wheeler, Visiting Fellow, Governance Studies, The Brookings Institution

    The U.S. Court of Appeals for the District of Columbia Circuit (CA-DC for short) has more vacancies, and a greater proportion of vacancies to judgeships, than any other federal appellate court. Appointees of President George W. Bush or his father hold four of the court’s 11 judgeships, and appointees of President Clinton hold three. Six senior judges, all but one Republican appointees, are on the draw but able to take reduced caseloads.

    Senate Republicans and their press allies believe the status quo is basically fine. They refused to allow a vote on one Obama nominee, Caitlin Halligan, bowing to National Rifle Association claims that she’s too liberal to serve in the federal judiciary. They appear willing to allow a vote on a second Obama nominee, the very capable Srikanth Srinivasan, who has served in both the Bush and Obama Justice Departments.

    But, they say, Srinivasan is enough. Why? The reason most commonly offered is that CA-DC doesn’t need more judges because it has a light caseload. Ranking Senate Judiciary Committee member Charles Grassley said, correctly, that its 108 filings per judgeship in 2012 was lowest in the country.

    Others respond, just as correctly, that raw filings hardly tell the whole story of a court’s workload. It’s impossible to compare accurately the workloads of the 13 courts of appeals because the federal judiciary has developed no accurate way to “weight” different case types in those courts—as compared to the fairly sophisticated method for weighting district court caseloads.

    But there is no doubt that CA-DC has a heavy docket of appeals from decisions of federal administrative agencies, appeals that do not benefit from initial review in the district courts. Former CA-DC chief judge Patricia Wald recently described them as “the most complex, time-consuming, labyrinthine disputes over regulations. . .cases [that] 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.”

  • April 24, 2013

    by Jeremy Leaming

    If you’re one of the president’s nominees to the federal bench it helps to have a signficant connection to the Senate Judiciary Committee’s Ranking Member Chuck Grassley (R-Iowa).

    Jane Kelly, an assistant public defender in Iowa, nominated in January to a seat on the U.S. Court of Appeals for the Eighth Circuit was today confirmed to the federal appeals court 96 – 0. She was nominated by President Obama in January. She is the second woman and first public defender to serve on the Eighth Circuit. Both state senators, Grassley and Tom Harkin (D-Iowa) worked closely to move along the nomination.

    But of course most nominees do not have the sort of backing Kelly received. Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) in a press statement lauding the confirmation, again noted that on average the president’s appeals court nominees “wait 132 days for a vote in the Senate, compared to just 18 days” for Obama’s predecessor. 

    Regardless of uninformed or brain-addled pundits who argue Obama is at fault for the judicial vacancy crisis or for filibusters of certain pieces of legislation, the reality is that Senate Republicans led by Minority Leader Mitch McConnell (R-K.Y.) have stuck to agenda of obstruction. In the case of the federal bench, Senate Republicans have put aside the concerns of Americans who should and need to be able to rely on an efficient court system for political machinations.

    Sen. Grassley, who supported Kelly, saying she is “well regarded in my home state” is also leading an effort to limit the president’s ability to fill vacancies on the 11-member U.S. Court of Appeals for the D.C. Circuit. The D.C. Circuit is one of the nation’s most important federal appeals courts, hearing complex litigation often focusing on high-profile constitutional concerns. Patricia Wald, who served on the D.C. Circuit for 20 years, wrote for The Washington Post that the Circuit “hears complex, time-consuming, labyrinthine disputes over regulations with the greatest impact on ordinary American lives: clean air and water regulations, nuclear plant safety, health-care reform issues, insider trading and more.”   

  • April 11, 2013
    Humor

    by John Schachter

    If “fracking” is one of the buzzwords in the energy policy world these days then “court fracking” might become a new legal catchphrase.

    Court fracking: (noun) the insertion of blatant politics into the judicial system to extract seats on the nation’s second most important court (i.e., the D.C. Circuit) eliminating one and dispersing others to dilute the potential impact of progressive jurists.

    Unlike President Franklin Roosevelt’s ill-fated court-packing scheme of 1937, this fracking plan comes from Senate Judiciary Committee Ranking Member Charles Grassley (R-Iowa). During yesterday’s hearing on the nomination of Sri Srinivasan to the Court of Appeals for the D.C. Circuit, Sen. Grassley announced that he was introducing legislation to reduce the number of seats on the D.C. Circuit – often called the nation’s second most important court – from 11 to eight. Two of the seats would be moved to other circuit courts while one would be eliminated completely.

    Today just seven of the 11 seats are occupied, although President Obama has now nominated two people for seats – the first of whom Republicans successfully filibustered over the course of three years! Caitlin Halligan in 2010, 2011 and again just last month saw her path to the court blocked by Republicans who apparently feared the presence of more progressive brilliant thinkers on a court currently composed of four Republican appointees and three Democratic ones. And, for good measure, Republicans also blocked a vote on Goodwin Liu in 2010 and 2011 for a seat on the U.S. Court of Appeals for the Ninth Circuit.

    Few objective court watchers could challenge Halligan or Liu on serious substantive grounds. Ideology is another matter. While Republican critics portrayed Liu as a rogue activist, his year and a half on the California Supreme Court since his failed federal nomination reveal him to be a brilliant, well-respected and impartial jurist. Halligan had strong support from some the nations’ leading legal minds – including former officials from the Reagan and George W. Bush administrations – yet Republicans characterized her as a virulent anti-gun activist rather than the esteemed legal thinker she has proven to be.

  • April 4, 2013

    by Jeremy Leaming

    The inability of President Obama to fill vacant seats on one of the nation’s most powerful courts, the U.S. Court of Appeals for the D.C. Circuit, has belatedly caught the attention of a few beltway reporters. And unsurprisingly several of those longtime reporters have framed the story in a typical, albeit lazy, fashion – it’s both the Republicans and the administration’s fault. It’s a story they are trained to write. Place blame on both parties, question whether there’s really anything new here and then walk away.

    So one must look to writers like Andrew Sullivan, Thomas Mann and Norman Ornstein or the Constitutional Accountability Center’s Judith Schaeffer for an accurate picture of the debacle that is the judicial nominations process.

    The current fight over the judiciary has very little to do with the pace by which the administration has nominated potential judges. It has everything to do with a Republican Party that has grown increasingly radical. It’s a Party that is oblivious to the last two presidential elections, won fairly handily by a Democrat, and beholden to interests that need a federal bench that tilts heavily rightward – to protect corporate interests. So Republican senators, led by Minority Leader Mitch McConnell (R-Ky), have not taken their constitutional duty to provide advice and consent seriously and abused the filibuster to greatly slow the pace of judicial confirmations. This has led to vacancies across the country hovering above 80 for far too long.

    As Sullivan wrote in March, President Obama is “not equally at fault here. This should be a steady, reasonable process – especially for utterly uncontroversial nominees. The American system requires some give-and-take, some acknowledgment that when you lose an election, you cooperate with the winner and take some responsibility for important institutions, like the federal courts. And yet this core conservative instinct to preserve the constitutional order and process has disappeared in the fanaticism of the current GOP. They are behaving like moody teenagers with grudges.”

    The Republican obstructionists’ actions have likely had the most adverse effect on the D.C. Circuit, where they recently filibustered one of Obama’s selections for the D.C. Circuit, which hears some of the most important constitutional matters of any of the federal appeals circuits. It hears, for instance, challenges to new regulations aimed at enforcing the Clean Air and Clean Water federal laws. It is also a Court that tilts rightward and has shown great hostility to regulations aimed at protecting our environment – good for corporate interests, harmful to the health of many Americans. 

  • April 2, 2013

    by Jeremy Leaming

    Senate Republicans bent on obstructing the Obama administration’s efforts to fill vacancies on the federal bench may be feeling a bit of pressure to back off their political agenda for the sake of one of the nation’s most powerful appeals courts.

    Last month Republicans filibustered the president’s nomination of Caitlin Halligan to fill one of the four vacancies on the 11-member U.S. Court of Appeals for the District of Columbia Circuit. The president had tried numerous times to place Halligan, the general counsel for the Manhattan district attorney’s office, on the Court, but Senate Republicans refused to allow an up-or-down vote citing flimsy claims that she is a left-wing ideologue unfit to serve. Not long after the latest filibuster, Halligan withdrew her nomination. As NPR’s Carrie Johnson reports the appeals court, which hears of range of weighty constitutional matters, has more vacancies than any other appeals court circuit. (ACS President Caroline Fredrickson in an interview with NPR noted the partisan leaning of the D.C. appeals court and its importance in handling challenges to federal regulations. “The clean air that we breathe, we hope to breathe, the clean water that we’d like to drink [and] all the EPA regulations around climate change are subject to this court’s review. And this court has shown itself extraordinarily hostile to efforts to protect people from environmental dangers.”)

    The Senate Judiciary Committee is scheduled to conduct an April 10 hearing to consider another Obama nominee to the D.C. appeals court circuit, Sri Srinivasan, the principal deputy solicitor general. Srinivasan was nominated to the D.C. Circuit nearly a year ago, but like Halligan, his nomination has faced Republican opposition. Srinivasan, born in India and raised in the U.S., has not been attacked as an ideologue for a seat on the federal bench, instead Sen. Chuck Grassley (R-Iowa), the Senate Judiciary Committee’s Ranking Member, has demanded information from the Department of Justice to determine whether Srinivasan was involved in the settlement of case involving city officials in St. Paul, Minn. (Grassley has suggested that city officials agreed to settle a case that could have resulted in a ruling weakening an enforcement provision of the Fair Housing Act in return for the DOJ’s agreement not to pursue and unrelated case. As The Blog of Legal Times reported earlier this year that Grassley has not suggested that Srinivasan “did anything inappropriate or improper,” but he wants to see more documentation to determine what, if any, role Srinivasan played.) If confirmed to the seat, Srinivasan would be the first South Asian to sit on the appeals court bench.

    Yesterday, White House Press Secretary Jay Carney urged senators to move on the nomination. He called the Principal Deputy Solicitor General a “highly respected appellate advocate who as has spent a distinguished career litigating before the U.S. Supreme Court and the U.S. Court of Appeals, both in private practice and on behalf of the United States for both Democratic and Republican administrations.”