by Jeremy Leaming
Senate Majority Leader Harry Reid is pushing his colleagues to stop blocking the nomination of Caitlin Halligan, who has earned the American Bar Association's highest possible rating, to the U.S. Court of Appeals for the D.C. Circuit.
The Senate, as The Blog of Legal Times reports, is set to vote Dec. 6 on whether to allow an up-or-down vote on the nomination, which the Senate Judiciary Committee approved in March.
Senate Judiciary Chairman Patrick Leahy, noting the vacancies on the D.C. Circuit Court, said Republicans should stop holding up the nomination.
“Republicans’ shifting standards with respect to judicial nominations have required cloture motions to be filed on some nominations that ultimately won unanimous support from the Senate,” Leahy said in a statement. “Those shifting standards even required cloture to be filed on a district court nomination earlier this year. It would set yet another new standard if a nominee this well-qualified is prevented from even having an up-or-down vote, and one that could not be met by judicial nominees of the Presidents of either party.”
Despite strong bipartisan support – Halligan’s nomination is backed by appellate advocates such as Miguel Estrada, who served in the George W. Bush Administration, and Carter Phillips, who served in the Reagan administration – gun rights groups have rallied against the nomination.
The nomination, moreover, is supported by top law enforcement officials, such as New York City Police Commissioner Raymond Kelly and former New York County District Attorney Robert Morgenthau. (Halligan served as the state’s solicitor general for nearly six years.)
Marcia D. Greenberger, co-president of the National Women’s Law Center, in a post for the organization’s blog, noted that confirming Halligan’s nomination would not only fill one of the three vacancies on the federal appeals court, but would also “increase the diversity on this court by adding only the sixth female judge in this court’s 118-year history.”
As noted by JudicialNominations.org, there are currently more than 80 vacancies on the federal bench, with 30 of them declared judicial emergencies by the Administrative Office of the U.S. Courts.
In November, University of North Carolina School of Law Professor Michael Gerhardt and University of Minnesota Law School Professor Richard Painter wrote in an ACS Issue Brief about the Senate’s need to stop unnecessarily blocking judicial nominations, noting the federal bench’s high vacancy rate. The two concluded, in part, that if the Senate could not find a way to overcome the rancor over judicial nominations that the country could “lose confidence in our republican form of government and increasingly believe that elected leaders are in it for themselves, rather than for the good of the Country.”
Painter, who served as President George W. Bush’s chief ethics lawyer, told ACSblog today that he remains staunchly opposed to filibustering judicial nominations.
Painter said:
I have not reviewed the record sufficiently to form an opinion on whether I would recommend confirmation of Caitlin Halligan by the Senate. I am however strongly opposed to this filibuster as I have been opposed to all of the Senate filibusters during both the Bush and Obama administrations.
The reasons for my opposition to filibusters are perhaps best stated by Senator John Cornyn of Texas in his article in the Harvard Journal of Public Policy.
To the extent Ms. Halligan's opponents claim that positions she has asserted for clients are her own (for example on gun rights) because she asserted those positions for clients, their criticism is ignorant of lawyers’ professional responsibility to represent clients zealously whether or not the clients' views are those of the lawyer. Indeed lawyers are for this reason prohibited from stating in litigation whether they personally agree with the position of a client. Going back to the days of John Adams, the bar has widely recognized that the positions and actions of clients are not necessarily those of their lawyers. This line of criticisms of Ms. Halligan is unfair.
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