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Caitlin Halligan Need Not Apply

By on 11.16.11 @ 6:10AM

The D.C. Circuit Court of Appeals does not require her services.

Unlike the rest of us, federal judges have lifetime jobs. Before giving a nominee a lifetime job, Congress shouldn’t just look at the nominee’s ability and temperament. It should also think about whether the country and its taxpayers need another permanent employee. Congress should think hard on both grounds before giving Caitlin Halligan, a nominee for the D.C. Circuit Court of Appeals, a lifetime job.

Halligan’s record shows that the D.C. Circuit doesn’t need her help deciding cases. When she was Solicitor General for the State of New York, working for Attorneys General (and aspiring Governors) Eliot Spitzer and Andrew Cuomo, she advanced positions on high-profile legal issues that consistently raise yellow caution flags.

For example, Halligan supported New York’s efforts to hold the manufacturers of handguns liable for criminal acts committed with handguns. Those lawsuits represented an activist effort to use the courts to solve a societal problem. When Congress was considering shutting those lawsuits down, Halligan gave a speech in which she noted how the “dynamics of our rule of law enables enviable social progress and mobility,” a formulation that sounds like it’s from the living Constitution hymnal.

The New York Court of Appeals rejected the arguments in a brief that Halligan signed, explaining that the state’s legislative and executive branches were “better suited” to solving societal problems than the judiciary. And, after Congress passed the Protection of Lawful Commerce in Arms Act, Halligan signed a friend-of-the-court brief contending that the Act was unconstitutional. The Second Circuit rejected those arguments.

Another caution flag is warranted for the friend-of-the-court brief that Halligan wrote for New York and seven other states in Roper v. Simmons. In that brief, she argued that “an enduring legislative consensus has emerged against executing juvenile offenders.” Simmons was sentenced to death in Missouri after being convicted of a gruesome felony murder that he committed when he was 17 years old. After assuring his friends that they could “get away with it” because they were minors, Simmons and his friends broke into a woman’s house in the middle of the night and kidnapped her, driving her in her minivan to a state park. There, they walked her to a railroad trestle above a river where they bound her hands and feet with electrical wire and covered her face with duct tape before throwing her into the river to drown.

In Article V of the Constitution, the States agreed that it would take three fourths of them, 38 of the 50 states, to amend it. In her amicus brief, Halligan contended that “an enduring consensus” against the execution of juvenile murderers had emerged. She crafted that “enduring consensus” by noting that, of the 37 states that authorize capital punishment, the number of them that prohibited the execution of juveniles had increased from 11 to 18 (plus the federal government) over the preceding 15 years. That’s well short of the 38 needed to amend the Constitution.

Sad to say, though, a majority of the Supreme Court bought that argument, holding that “evolving standards of decency” and the Eighth Amendment’s prohibition of cruel and unusual punishment barred the execution of juvenile killers like Simmons.

Halligan also wrote an opinion advising that New York law should be read to require that members of same-sex unions be considered spouses under state law. New York’s Domestic Relations Law then required that marriages performed in New York be between persons of the opposite sex, but Halligan said that reading the law that way raised “serious constitutional concerns.” She relied on a state trial court ruling holding that New York law had to recognize parties to same-sex unions as spouses under state law. New York’s appellate courts subsequently reversed that ruling, though, and the New York Legislature did not recognize same-sex marriages until mid-2011.

On the gun lawsuits and same-sex marriage, Halligan got herself and the State leading a parade of one. In response to a question from Senator Sessions, Halligan wrote that, as Solicitor General, she based her recommendations on the legal positions the state should take “on an analysis of the legal issues and the state’s interest in the issues at hand.” While the ultimate recommendation represented a “synthesis” of other staff and agency views, Halligan’s views probably carried great weight with her bosses, and it is unlikely that the State took any legal action over her negative recommendation. For that reason, even though we should be careful in judging an attorney’s judicial philosophy and understanding of the role of the courts from that attorney’s clients and arguments, Halligan’s trailblazing and progressive legal work is different.

On top of her record, there’s no good reason to give Halligan a lifetime appointment on the D.C Circuit. The Founders provided that federal judges would “hold their Offices during good Behavior” and that their pay should not be “diminished during their Continuance in Office” in Article III of the Constitution. They wanted to make sure that federal judges were not “overpowered, awed or influenced” by the Executive or Legislative branches of government as Alexander Hamilton put it in Federalist No. 78. After all, the colonists complained that King George III “made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries” in the Declaration of Independence.

Even if we think judicial independence from the other branches of government is a good thing, that’s no reason to be hasty in bestowing permanent employment on anyone. In fact, the seat that Halligan has been nominated to fill has been vacant for nearly six years. There’s not only no hurry, but the court’s workload doesn’t need her help to get it done.

In 2010, the D.C. Circuit had the lowest number of appeals pending per panel of all of the other circuits. Its workload has also been declining with the number of appeals filed decreasing by more than 14 percent from 2005 to 2010, and the number of appeals pending decreased by nearly 12 percent during the same time. Clearly, the D.C. Circuit doesn’t need Halligan to help handle its declining workload.

Indeed, if the Circuit needed help, the Senate could have considered the nomination of Peter Keisler for that seat. Instead, the Senate Judiciary Committee made the former Assistant Attorney General and well-respected Keisler wait for 918 days for a hearing that never came.

The Senate should think long and hard before bringing Halligan’s nomination to a vote. There is no need for another lifetime appointment to the D.C. Circuit, and her consistent record of using the courts to solve societal problems is troublesome.

Update: Number of states needed to amend the Constitution corrected.

About the Author

Jack Park is an attorney with the Atlanta law firm Strickland Brockington Lewis LLP.

Letter to the Editor View all comments (31) |

Cosmo| 11.16.11 @ 6:30AM

Don't confirm any more federal judges until
after Obama is out of office...

Pecos Pete| 11.16.11 @ 7:38AM

Cosmo, I'd go further and suggest that the federal judiciary be limited to the number currently serving, that their terms of office be limited to not more than 12 years with total compensation, including benefits, not to exceed $1 more than the average hourly wage of McDonald's wait staff ... and this includes the supremes.

Al Adab| 11.16.11 @ 10:23AM

Pete:
Congress actually has the power you suggest. They can reorganize the federal judiciary as they wish under their enumerated powers to provide such Courts as they deen necessary. Unfortunately, the Senate gets to consider appointments so it is the Conservatives who must take a hard stand against the Kagan's and Soto's the Left so favors. Sadly they haven't the stomach to do to these activist social engineers what The Left did to Bork and other nominees from the GOP. We had better understand the rules of engagement or get off the field.

Larry| 11.17.11 @ 11:18PM

I heartily agree with that idea, Pecos Pete. I am of the opinion that Federal judges have way too much power to allow them to hold a lifetime position anymore. A lifetime position is NOT necessary to judicial independence. The Founding Fathers would be shocked if any of them came back from the grave today and saw the enormous power these judges have aggregated in their favor.

John Barleycorn| 11.16.11 @ 7:52AM

Uh, Jack, the Constitution requires a 3/4ths affirmation by the several states in order to be amended. This would be 38 states. 2/3rds of the states - 34 - may call a constitutional convention.

Jack Park| 11.16.11 @ 8:52AM

Thank you, John Barleycorn. Article V of the Constitution says that 2/3 can apply for a convention, and that amendment are valid when "ratified by the legislatures of three-fourths of the several states."

Al Adab| 11.16.11 @ 10:24AM

...and currently 33 states are involved in litigation over Obamacare.

Dave | 11.16.11 @ 9:22AM

Seems to me if Obama gets his Union/ ACORNISTA/Occupier cronies to steal him another four years to stink-up the joint, you can probably count on him nominating someone like "Flower" Halligan to share marque space with his two OTHER starlets: "Butch Kagen and the Sundance Sotomayor."

I can just see the new marble inlay above the Supreme Court building:

NOW PLAYING ...
"Constitution? We Don't Got To Honor No Stinkin' Constitution."

And speaking of Obamacare, looks like Judge Butch is going to remain on the bench and hear the arguments to this scam. Of course those who get their news from TMZ and ACCESS HOLLYWOOD probably missed the report on her resume where she was up to her grand keister in defending Obamacare while acting in a supporting role as Barry's Solicitor General.

I guess Rachael Ray only does receipes.

Maybe they ought just revise the ENTIRE Supreme Court marque and go with something more in line with the Kagen playbill:

"Ethics? We Don't Got To Have No Stinkin' Ethics"

Works for me. But I'll wait for the DVD. I hate crowds.

DTOM| 11.16.11 @ 10:06AM

Dave,

"Badges? We don't need no stinkin' badges!"

was a line from Treasure of the Sierra Madre with Humphrey Bogart, John Huston from the late 40's.

Butch and Sundance didn't worry about stinkin' badges - they just wanted to know, "Who are those guys?"

But otherwise, I'm with you on that crew of bad actors...

Dave | 11.16.11 @ 10:53AM

DTOM:

Sorry you had a little difficulty in connecting that my comment had kind of a basic Hollywood/Classic Film theme running through it. But thanks for pointing out the correct Bogart/Sundance dialogues. Without your help, I might have ended-up ... *Clueless.

(*that'd be an Alicia Silverstone reference.)

I guess I just have to quit assuming that those reading these quickie posting will make the theme connections. My bad.

Actually, this all kind of reminded of a kid who sat in the front row of my high school English class. I remember on a few Friday afternoons, just seconds after the last bell of the week rang, ol' Wally's eyes would bug out and he'd begin frantically waving his hand in the air and shouting:

OOOH, OOOH, MISS WILKINSON! YOU FOREGOT TO ASSIGN US HOMEWORK FOR THE WEEKEND!

Without guys like you and Wally ... guys like me would still be knockin' our shins in the dark.

Thanks again, buddy.

DTOM| 11.16.11 @ 12:24PM

Dude!

I never, ever sat in the front row and I never, ever raised my hand begging for a homework assignment and the concomitant playground pounding that such behavior would so richly deserve...heck, I was the kid who got hauled straight to the monsignor's office, bypassing my parents and the principal, when found to have not filled in a single line in my 7th grade spelling book 6 months into the scholastic year. I did get 100's on every spelling test, though.

Lazy is just good thinking if you get the job done. HeeHaw.

Occam's Tool| 11.16.11 @ 2:50PM

Nobody messes with Fred C. Dobbs....

cuban pete| 11.16.11 @ 9:09PM

Yeah but he was" so dumb he didn't know the riches he was standing on with his own two feet...."

John| 11.16.11 @ 9:27AM

Caitlin Halligan, that SEIU thug, should get fired!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

Richard Baker| 11.16.11 @ 9:53AM

Another legal mental midget. The Constitution restrains? Then to hell with the Constitution and let's make it up as we go along. She's just another disguntled lawyer with a chip on her shoulder masquerading as an "intellectual." My dog Kenan has more common sense than this angry broad.

Timothy L. Pennell| 11.16.11 @ 10:05AM

If our hopes lie solely with the likes of Dick Lugar, Orin Hatch, or any of the other RINO's in the Senate, you can start nailing her Name Plate to the door, now.

Jim| 11.16.11 @ 11:29AM

Mr. Park,

As an attorney, you should understand that when an attorney represents a client---whether that client is an individual, a company, or a state---the attorney does not always personally support the client's opinions. Suggesting that Halligan personally supports the same positions she advocated for while acting as an attorney for the state of New York is like suggesting that Bernie Madoff's attorneys personally condone fraud. Similarly, I believe Justice Kennedy represented some criminal defendants while he was in private practice, so does that mean he always finds in favor of criminal defendants as a judge? Obviously not, and trying to attack Halligan in that way is disingenuous or lazy.

It seems the GOP opposition to Halligan is based more on the fact that she appears like a possible future SCOTUS nominee---as was the case with the Democratic opposition to Miguel Estrada a few years back. Personally, I think both would be strong judges and that the political parties need to quit the tit-for-tat blocking of smart, well-qualified nominees like Estrada and Halligan.

Your point regarding the workload for the D.C. Circuit, however, should be examined. I have heard elsewhere that the D.C. Circuit, even with 3 vacancies, is not currently overworked. Whether that would be the case going forward needs to be looked into by Congress. Some other federal courts are overwhelmed with massive caseloads and perhaps the funding for judges could be shifted from DC to those other courts where shortages of judges are actually causing severe delays to litigants.

Occam's Tool| 11.16.11 @ 2:48PM

The fact that Obama would appoint her is all I need to know.

"Like a mackerel on a pier by moonlight, he shines as he stinks."

Larry| 11.17.11 @ 11:25PM

Jim, the history of Federal district judges in this country has shown that a person like Halligan IS in support of her client's opinions and backgrounds, and IS as liberal as whatever clients she has. Comparing her to Bernie Madoff's lawyers is disingenous, because she is not a private lawyer representing fraudulent clients. She was a government lawyer in many of these instances, and I know many defense lawyers who advocate the same positions as she does. I have found it increasingly difficult to separate, in these instances, the criminal defendants from the lawyers they represent.

As a person with experience as a government lawyer, I know that there are many of my fellows who have been and are sympathetic with the broader aims of some of their leftist clients. She is only one example.

Talon's Point| 1.27.12 @ 12:13AM

You know as well as I do that if she litigated such a high profile case it was because she was committed to it. Yes she would litigate if directed but with something so high profile if her heart wasn't in it they would have known and given it to some other wolf with a taste for blood. She had the case because they trusted her with it and she wanted it (.)

Conserdude| 11.16.11 @ 1:14PM

The Constitution requires 2/3 of both houses of Congress to amend it, followed by 3/4 of the states, not 2/3. Three-quarters amounts to 37 states.

Conserdude| 11.16.11 @ 1:15PM

Sorry - 38 state legsilatures are required to meet the 3/4 constitutional threshold to amend.

Anthony| 11.16.11 @ 4:30PM

Thank you Mr. Park. You have, in your expose of Ms. Halligan, made the case that Obozo and Holder are accessories to murder, as a result of their actions in Fast and Furious. Thank you Ms. Halligan for connecting the dots!!!
If we take Ms. Halligan's, and the left's, legal analysis and apply it to Obozo and Holder, we have, a slam dunk.
If leftists believe that gun maufacturers shoud be held liable for the actions of criminals who commit crimes with guns, than ipso facto, Obozo and Holder, who created a policy that deliberately placed guns in the hands of Mexican drug lords, are equally criminally liable for the death of a boarder patrol agent, as a forseeable consequence of their policy.
Can we now get a U.S. Attorney to indict these two criminals?

Petronius| 11.16.11 @ 10:12PM

"The Constitution doesn't matter. The truth is unimportant. All that counts is WHO Controls the Court."
Anita Hill
My memory is by no means short.

Talon's Point| 1.27.12 @ 12:03AM

Produce the hair.... Neither is mine ;-)

Accusation does not make for guilt. In the case of Halligan accusation is backed up with her record, something Hill failed to do.

Augusta| 11.20.11 @ 3:14AM

As a New Yorker, I despair at the fact that no matter how conservative the federal government may become in the future, it will still be an Orwellian nightmare in lefty NY. Upstate will always be hopelessly tethered to NYC, and the Burroughs will always be hopelessly tethered to Manhattan. Businesses will continue to make their mass exodus out of the state, and the state will continue to spiral down into a fiscal black hole, while the Unions and PC Nanny State expand to totalitarian levels. Somehow, declaring "At least we're not California" is little comfort to those of us who can't afford to move to a free State that treats its citizens like adults and its tax payers with respect. If this horrid, unhinged progressive woman is appointed, it will mean the death knell of true justice too.

Rockerbabe| 11.21.11 @ 12:46AM

What a reactionary! A lawyer arguing a case on behalf of her client? Oh my, whatever have we come to?

Basically the writer is urging that only men be appointed to the bench; only "conservatives" can be trusted with the Constitution and the rest of us just do not count for anything. In summary, only neathandreal cavemen need apply!

Talon's Point| 1.26.12 @ 11:59PM

I know you leftists fall back on the racist, sexist, homophobe argument when you have no real argument but can you at least shroud it in something less obvious next time for humor's sake?

Paul in PA| 12.6.11 @ 11:45PM

@Rockerbabe, here's the part you got right "only "conservatives" can be trusted with the Constitution"!

Talon's Point| 1.26.12 @ 11:56PM

Perpetually bad judges is what we get when we forget that Judges can be removed when we have the fortitude to do so.

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