Like Guy Benson, I’m not a fan of filibusters on judicial nominees. Elections have consequences, and among them are the ability to appoint people to the federal bench. Instead of spending time rallying for filibusters on judicial appointments, political activists should spend their time defeating their opponents in presidential races. On the other hand, I’m not going to cry over the loss of Caitlin Halligan to the DC Appellate Court, nor join in the outrage from the party that invented Borking:
Senate Republicans on Tuesday filibustered President Barack Obama’s nomination of Caitlin Halligan for the U.S. Court of Appeals, prompting Democrats to denounce the move as setting “a new standard” for confirming judicial nominees.
Republicans cited Halligan’s controversial stance on gun laws as a reason for their opposition.
“The new standard applied by Senate Republicans to nominations to the D.C. Circuit will make it nearly impossible for nominees of any president to be confirmed to this important court,” said Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), who before the vote made the case that Halligan had broad support and experience in both the public and private sector, said after the vote.
Aformer New York state solicitor general, Halligan “is the kind of nominee we should all welcome to public service,” Leahy added. “This filibuster is a disservice to the federal judiciary, and to the millions of Americans it serves.”
Yeah … kind of like Miguel Estrada, huh? Remember the basis for the filibuster led by Leahy and Ted Kennedy on that nomination? Cry me a river, Senator.
Halligan didn’t get derailed just for her position on gun rights, either, although that certainly played into it. She argued as Solicitor General for the state of New York that gun manufacturers should be held liable for any criminal acts committed with the use of their products. Shall we also hold car manufacturers liable for accidental deaths on the roads, and for robberies in which criminals use cars as getaway vehicles? Halligan also has never served as a jurist in her life, which makes her appointment to an appellate court unusual (although not unprecedented); why not start her at a district-court level instead? Are there no experienced judges who could fill this slot?
As Guy explains, she has argued a number of rather extreme positions in the past as well. Halligan essentially wanted the Supreme Court to reverse itself on Hamdi by arguing that the President has no authority to detain al-Qaeda terrorists captured overseas. She also wanted to apply RICO statutes against pro-life groups, as Mitch McConnell noted in invoking the “extreme” exception for the use of the filibuster, and more:
On the Second Amendment: As solicitor general of New York, Ms. Halligan advanced the dubious legal theory that those who make firearms should be liable for third parties who misuse them criminally. The state court in New York rejected the theory, noting that it had never recognized such a novel claim. Moreover, the court called what Ms. Halligan wanted it to do to manufacturers of a legal product ‘legally inappropriate.’ Let me say that again, the New York appellate court termed Ms. Halligan’s activist and novel legal theory to be ‘legally inappropriate.’ The Congress passed legislation on a wide, bipartisan basis to stop these sorts of lawsuits because they were an abuse of the legal process. Undeterred, Ms. Halligan then chose to file an amicus brief in the Second Circuit Court of Appeals in another frivolous case against firearms manufacturers. Not surprisingly, she lost that case, too.
On enemy combatants: In 2005, the U.S. Supreme Court ruled, in Hamdi v. Rumsfeld, that the President has the legal authority to detain as enemy combatants individuals who are associated with AQ. Yet despite this ruling, Ms. Halligan filed an amicus brief years later arguing that the President did not possess this legal authority.
On abortion: Ms. Halligan filed an amicus brief in the U.S. Supreme Court arguing that pro-life protestors had engaged in ‘extortion’ within the meaning of federal law. The Supreme Court roundly rejected this legal theory, 8-1.
On immigration: Ms. Halligan chose to file 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, even though 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 legal theory, too.
The point here is that even in cases where the law was perfectly clear, or the courts had already spoken, including the Supreme Court, Ms. Halligan chose to get involved anyway, 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 own views over and above those of the courts or those of the people, as reflected in the law. Ms. Halligan’s record strongly suggests that she wouldn’t view a seat on the U.S. Appeals Court as an opportunity to adjudicate, even-handedly, 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 happens to believe in. We shouldn’t be putting activists on the bench.
Indeed — and Halligan falls well within the “extreme” exception that Democrats demanded in the Gang of Six compromise of 2005. Republicans are operating from their precedent, going all the way back to Robert Bork. They now have to live with it.