Caitlin Halligan is the general counsel for the Manhattan district attorney’s office. President Obama nominated Halligan to the D.C. Circuit Court of Appeals in 2010. In 2011, she failed a cloture vote by a count of 54 for proceeding with her nomination to 45 vote against.
Since then, Obama has re-nominated her four times. But until recently, Harry Reid has not brought her nomination back to the Senate floor for a vote. Now, however, Halligan’s nomination has cleared the Senate Judiciary Committee on a party-line vote and the Senate once again will have to decide whether to proceed on it.
There are two good reasons why Senate Republicans should again block the nomination. First, Halligan’s leftist views are outside of the mainstream. Second, she did not testify candidly during her confirmation hearing.
If, upon reviewing this post, you agree that Halligan’s nomination should be blocked, I ask you to so inform key Republican Senators. The Senators identified to me as most important on this vote are: Graham (naturally), McCain, Flake, Rubio, Alexander, Kirk, Murkowski, Thune, and McConnell.
As to Halligan’s leftism, let’s start with national security, since the D.C. Circuit, where she would serve, is heavily involved in such cases. In 2004, Halligan signed a report issued by the Association of the Bar of the City of New York’s Committee on Federal Courts. As Ed Whelan has shown, this report, called “The Indefinite Detention of ‘Enemy Combatants’ and National Security in the Context of the War on Terror,” took extreme positions regarding the meaning of Due Process in the War on Terror — positions that the courts have rejected and that the Obama administration has had to retreat from.
To take just one example, the Report Halligan signed argues vigorously against the use of military commissions to try alien terrorists for violations of the laws of war, on the theory that the same constitutional protections afforded ordinary criminals should presumptively extend to those believed to be alien enemy combatants. In Halligan’s view, then, these individuals have a right to be tried in federal court. But even the Obama administration has abandoned the view that alien enemy combatants whose only connection with this country consists of their acts of war against it should enjoy the constitutional rights that American citizens have.
Halligan has also tried to bankrupt gun manufacturers by urging in court that they be held liable for the actions of those who misuse their product when harm results to others. And she opposed the Protection of Lawful Commerce in Arms Act (PLCAA).
Given this record, it isn’t surprising that the NRA opposes Halligan. It does so “based on [her] attacks on the Second Amendment rights of law-abiding Americans,” specifically her efforts “to undermine the [PLCCA]” which “was an essential protection both for the Second Amendment rights of honest Americans and for the continued existence of the domestic firearms industry as a supplier of arms for our nation’s defense.”
Halligan’s legal views on same-sex marriage are also problematic. In an opinion on the subject issued in her capacity as solicitor general of New York, she dismissed, with only the most cursory discussion, the possibility that the traditional definition of marriage might be justified by a state interest in “promoting procreation” and/or by an interest in the welfare of children. As Ed Whelan shows, Halligan’s analysis is one-sided and fails even to acknowledge counterarguments. This demonstrates extremism, superficiality, or both.
There is considerable disagreement about whether, or under what circumstances, a nominee should be filibustered on the basis of “ideology.” But when a nominee provides dishonest or misleading testimony about his or her past positions, the case for a filibuster becomes manifest.
Halligan’s testimony about her involvement in the aforementioned bar report on the role of Due Process in the war on terrorism does not withstand scrutiny. She listed that report on her official Senate Judiciary Committee questionnaire as one that she “prepared or contributed in the preparation of.” However, she also claimed: “I do not recall personally contributing or participating in these reports other than as a member of the Committee approving them.”
Then, she claimed that she had only recently learned of the report’s existence, and that its conclusions were “incorrect” and do not represent her own opinion. However, although four members of the committee that produced the report clearly indicated in their signature that they abstained from approving conclusions of the report, Halligan is not among them.
In addition, Senator Grassley has expressed concern about whether Halligan “has been totally forthcoming with [the Judiciary] committee in regard to her anti-gun stance.” In response to a question about whether there is a basis in the law for liability of gun manufacturers, she said that there isn’t in New York (because the position she urged lost) and she disavowed knowledge of the law in other states. But Grassley points out that in a brief arguing that the Protection of Lawful Commerce in Arms Act violates the principles of federalism, Halligan opined about the law in states besides New York.
The Senate was right to block Halligan’s nomination in 2011. It should do so again. If you agree, please let Republican Senators know.