DC Court of Appeals

Ornstein: Senate GOP Causing "Damage to the Vital Interests of the United States"

The latest condemnation of the Senate GOP's dangerous obstruction against executive and judicial nominees comes from Norman Ornstein, a resident scholar at the conservative American Enterprise Institute. In a column published in Roll Call, Ornstein blasted Senate Republicans for the damage they are doing to our country.

Last week, Republicans blocked a vote on the nomination of Caitlin Halligan to serve on the D.C. Circuit Court of Appeals, setting a new standard for nominees to that court that will be virtually impossible for any president of either party to meet. Just two days later, they blocked a confirmation vote for Richard Cordray to head the Consumer Financial Protection Bureau, admitting that they did so not because of any problems with him but because they do not like the law creating that Bureau. Next, two days ago, Senate Democrats tried to overcome Republicans' obstruction of ambassadorial nominees, with mixed results. Ornstein writes:

The good news on Monday was that the Senate, in a show of broad bipartisan support, confirmed Norm Eisen to be the U.S. ambassador to the Czech Republic.

Eisen had been in the post for the past year on a recess appointment, and by all accounts, Czech and American, had been doing an exemplary job protecting and advancing American interests and values in a country that is a critical ally to the United States and an important commercial and trading partner. Why the recess appointment? Because Sen. Chuck Grassley (R-Iowa) decided well over a year ago that Eisen, while serving in the White House, had not been truthful to the Senator's staff over his role in the dismissal of the inspector general of AmeriCorps. Never mind that a voluminous record showed that Eisen had not dissembled, that the entire board of AmeriCorps, left to right, Democrats and Republicans, supported the dismissal, and the actions were upheld in two federal courts. Grassley would not budge.

Senate Democrats filed a successful cloture petition and Eisen was confirmed by voice vote. But the obstruction continued with a politically motivated filibuster of Mari Carmen Aponte to be ambassador to El Salvador. Aponte is now serving under a recess appointment, which expires at the end of the month.

The ostensible reason to oppose her? Decades ago Aponte had a boyfriend who might have had ties to Fidel Castro's government. Never mind that Senators had access to her FBI file — and that she has had a succession of top-secret clearances after exhaustive security checks. Aponte did not fare well — she fell 11 votes shy of the 60 needed once again to overcome cloture.

In a different world — i.e., the world the United States knew from 1789 until a few years ago — her 49-37 margin would have meant a comfortable confirmation. No more. Filibusters used to be rare events for bills, rarer for executive confirmations, rarer still for judicial nominations. Now they are more than routine; they are becoming the norm. Holds were not as rare, but the use of holds to block multiple nominees for not weeks or months but years or until death, were not typical; now they are the standard.

Citing other ongoing examples of Republican senators sabotaging ambassadorial nominations to countries key to U.S. security, Ornstein sums up the situation:

This goes beyond partisan polarization to damage to the fabric of governance and worse — to damage to the vital interests of the United States. ...

[S]hame on a Senate which went from blocking a well-qualified nominee for an appeals court judgeship via filibuster to blocking a superbly qualified nominee for the consumer bureau, to yet another in a series of ambassadors stymied via holds and filibusters. This is no way to govern.

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Senate Schedules Cloture Vote for Caitlin Halligan

Senate Majority Leader Harry Reid has scheduled a cloture vote for Tuesday at noon on Caitlin Halligan's nomination to the DC Circuit Court of Appeals. Hopefully, that means the Senate will be able to finally cast an up-or-down vote on an exceptional nominee who was approved by the Judiciary Committee almost nine months ago.

Judiciary Committee Chairman Patrick Leahy released a statement this morning on what it means that Senate Republicans would even consider filibustering someone like Caitlin Halligan:

Republicans' shifting standards with respect to judicial nominations have required cloture motions to be filed on some nominations that ultimately won unanimous support from the Senate. Those shifting standards even required cloture to be filed on a district court nomination earlier this year. It would set yet another new standard if a nominee this well-qualified is prevented from even having an up-or-down vote, and one that could not be met by judicial nominees of Presidents of either party.

Indeed, Halligan's exceptional qualifications and broad-based, bipartisan support cannot be denied:

  • She has received the highest possible rating of her qualifications from a unanimous panel of the ABA's nonpartisan Standing Committee on the Federal Judiciary.
  • She served as New York's State's solicitor general for nearly six years.
  • She has a broad range of professional experience in government service, private practice, and academia.
  • She has received the strong support of a bipartisan group of America's most renowned appellate advocates, including Miguel Estrada (Assistant to the Solicitor General under President George W. Bush and former nominee to this same court), Seth Waxman (Solicitor General under President Clinton), Carter Phillips (Assistant to the Solicitor General under President Reagan), and Walter Dellinger (Solicitor General under President Clinton).
  • She has been endorsed by women's professional organizations like the National Center for Women and Policing, the National Conference of Women's Bar Associations, the Women's Bar Association of the District of Columbia, and the U.S. Women's Chamber of Commerce.
  • She has the support of law enforcement organizations like the National District Attorneys Association, the New York Association of Chiefs of Police, the New York State Sheriff's Association, and New York Women in Law Enforcement.
  • She has been endorsed by top law enforcement officials in her home state like Raymond Kelly (New York City Police Commissioner) and Robert Morgenthau (former New York County District Attorney).
  • She was awarded the National Association of Attorneys General “Best Brief” award five consecutive years.

Clearly, Caitlin Halligan is supremely qualified, mainstream, and uncontroversial. The need for a cloture vote shows how far Senate Republicans have moved the goalposts since claiming during the Bush Administration that the Constitution actually prohibits the filibustering of judicial nominees. It is hard to imagine what "extraordinary circumstances" – the standard set by the "Gang of Fourteen" in 2005 – would possibly warrant a filibuster in this case.

Chairman Leahy is right to mention that a new standard would be created if a DC Circuit Court nominee with such sterling qualifications and bipartisan support cannot even get an up-or-down vote on the Senate floor. What nominee could possibly meet this new standard? Should Halligan be filibustered, then it seems unlikely that any vacancy on that court could ever get filled. Considering that three of the eleven seats on the DC Circuit are vacant (this one for more than six years), that would deal a crippling blow to what many consider to be the nation's second most important court.

When the cloture vote on Halligan is held this Tuesday, let's hope cooler heads prevail. And let's hope that by Wednesday, we'll be calling her Judge Caitlin Halligan.

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Washington Post Urges Halligan Confirmation

In an editorial today, the Washington Post urged the Senate to confirm Caitlin Halligan to serve on the D.C. Circuit Court of Appeals. Halligan was originally nominated by President Obama in September 2010 and was approved by the Senate judiciary committee seven months ago.

Ms. Halligan has had a distinguished career and deserves to be confirmed. A graduate of the Georgetown University Law Center, she clerked for D.C. Circuit Judge Patricia M. Wald and later for Supreme Court Justice Stephen Breyer. She has served as head of the appellate practice at a top New York law firm, as solicitor general in that state and now as general counsel for the New York County District Attorney’s Office in Manhattan. The American Bar Association gave Ms. Halligan a unanimous well-qualified rating. The Senate Judiciary Committee approved her nomination seven months ago; she has been waiting for a floor vote ever since.

While it is true that caseloads have been inching downward at the D.C. Circuit, the decline does not take into account the complexity and scope of the cases that land at the court. They include direct appeals involving federal regulatory decisions and national security matters, including cases stemming from the detentions at the U.S. naval base in Guantanamo Bay, Cuba.


Halligan has come under fire from the Right for work she has done as the Solicitor General of New York, where she was representing the interests of a client, rather than her own. Judith Schaeffer at the Constitutional Accountability Center writes:


Nonetheless, in a completely partisan action, every Republican on the Judiciary Committee voted against Ms. Halligan’s confirmation on March 10. Ranking Member Charles Grassley seized on aspects of Halligan’s record that he believes suggest she holds progressive views on certain legal topics. Apart from the fact that such views would hardly be disqualifying, these arguments against Ms. Halligan, as Committee Chairman Patrick Leahy has pointed out, are largely based on her work as a lawyer for a client — primarily as the Solicitor General of New York. It is always very dangerous to attribute to a lawyer positions taken on behalf of a client; all lawyers are required to represent their clients’ interests zealously, and they violate their ethical obligations if they fail to do so.


Moreover, Ms. Halligan’s conservative opponents have been engaged in cherry-picking through her record. As with most if not all attorneys who have had the great honor of serving as the lawyer for a State or other governmental entity dealing with a myriad of legal and political concerns and interests, Ms. Halligan’s record is replete with arguments made on behalf of her clients that could be characterized as “conservative,” along with others that could be characterized as “liberal.”


Linda Greenhouse of the New York Times examined the other right-wing charge leveled against Halligan:


As far as I know, Ms. Halligan has not been an activist for any cause. So what could Republican senators possibly hold against her? Nothing, it turns out, except excellence and career potential. Conservative bloggers floundered around trying to come up with something. A National Review blogger was reduced to accusing her of “left-wing extremism” for having been one of three dozen members of a committee of the Association of the Bar of the City of New York that issued a report in early 2004 critical of the Bush administration’s Guantanamo Bay detention policies.

As it happens, this report has been sitting on my shelf for the past seven years. Not having looked at it in quite a while, I turned to the conclusion on page 153 to see how exactly how extreme it was. Anyone who finds the concluding paragraphs to represent left-wing extremism has been living in a different universe:

"The Constitution is not a 'suicide pact,' as a Supreme Court justice once famously declared. But neither is it a mere compact of convenience, to be enforced only in times of civic tranquility. It should take far more than the monstrous brutality of a handful of terrorists to drive us to abandon our core constitutional values. We can effectively combat terrorism in the United States without jettisoning the core due process principles that form the essence of the rule of law underlying our system of government.
Insistence on the rule of law will not undermine our national security. Abandoning the rule of law will threaten our national identity."


Senate Republicans have been stalling Halligan’s nomination for seven months. It’s time to finally put it to an up or down vote.

 

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