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.
