Back in December 2011, the Senate Republicans rejected a motion to cut off debate on the nomination of Caitlin Halligan to a judgeship on the D.C. Circuit Court of Appeals. The Senate Republicans were on sound footing in opposing cloture for a number of reasons, some of which I noted here, and, with the failed cloture vote, her nomination went nowhere in the last Congress.
President Obama, however, renominated her in January 2013, and her nomination has made it out of the Senate Judiciary Committee. This time, the vote to send her nomination to the Senate floor was 10-7, with Senator Graham (R-SC), listed as Pass.
Now comes word that the Majority Leader, Senator Harry Reid, plans to file a motion to set a cloture vote on Halligan’s nomination later this week. As the title of this post suggests, now is not the time for the Senate Republicans to lose their nerve.
In staking out positions on issues like the death penalty and same-sex marriage, she has sung from the living Constitution hymnal. Halligan also endorsed making gun manufacturers responsible for criminal acts committed with guns in both a 2003 Law Day speech and her work as Solicitor General of New York. The courts rejected both her call to judicial activism and her attack on the federal Protection of Lawful Commerce in Arms Act, which barred lawsuits like the one she endorsed. Halligan’s arguments on these and other issues promise judicial activism on the bench.
In addition, she joined a report by the Association of the Bar of the City of New York’s Committee on Federal Courts that endorsed trying alien terrorists in civilian courts rather than before military commissions. The report also questioned the Government’s power to detain those terrorists indefinitely, a position that Justice O’Connor rejected in Hamdi v. Rumsfeld.
Halligan identified that report in her questionnaire as one that she “prepared or contributed” to. When asked about it at her 2011 Senate Judiciary Committee hearing, though, she said, “I do not recall personally contributing or participating in these reports other than as a member of the committee approving them.” She also said that, while the report did not reflect her views, she took no steps to disassociate herself from it before that hearing. In that regard, four committee members abstained from approving the report’s conclusions. In short, since that report became an issue, she has sought to back away from it.
The merits of Halligan’s nomination haven’t improved since December 2011. The Senate refused to cut off debate on that nomination then, and it should do likewise if the nomination comes up again in 2013.