Executive Session

Floor Speech

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Mr. SCHUMER. Mr. President, I rise this morning in support of the President's first and only nominee to the U.S. Court of Appeals for the District of Columbia Circuit.

Caitlin J. Halligan is a nominee any president of any party would be proud of. I know from speaking to her and from getting to know her over the last year--and it has been over a year since she was nominated--that she has earned this honor. She has earned it through dint of hard work and native intelligence. Importantly, Halligan has dedicated most of her professional life to government service.

I challenge anyone in this Chamber to think hard about what we are looking for in a judge to the second most important court in the land. If they do, they must conclude that Caitlin Halligan deserves an up-or-down vote.

Does the President have to nominate a political conservative to clear the hurdle? Halligan is clearly a moderate--far more moderate than many on my side would choose if they were nominating on their own without an advise-and-consent process. Does the President have to nominate a lawyer who has practiced law in the shadows, never addressing a major legal issue of importance to the Nation in her entire career? Because the only arguments against Caitlin Halligan are ``gotcha'' arguments that simply take little snippets of what she did in past law practice representing clients, not her own views, and say ``gotcha.''

In 2005, 14 of my colleagues formed what was called the Gang of 14. In order to reduce filibusters and overcome the push to change Senate rules to get rid of the filibuster, this bipartisan group agreed not to filibuster any nominees who did not present ``extraordinary circumstances.''

Now, ``extraordinary circumstances'' was not defined. But my colleague, Senator Graham, a leader in that Gang of 14 effort, to his credit, said on the floor at the time--completely reasonably--that it meant no ideological attacks. Senator Graham said:

Ideological attacks are not an extraordinary circumstance. To me, it would have to be a character problem, an ethics problem, so allegations about the qualifications of a person, not an ideological bent.

Caitlin Halligan does not have a character problem or an ethics problem. No one has alleged she does. It is that simple. So if this body cannot invoke cloture on her nomination today, the Gang of 14 agreement, it would seem to me, would be violated.

The approach taken by Senate Republicans will have lasting consequences beyond this one nomination. It seems to me that a vote against this nominee is a vote that declares the Gang of 14 agreement null and void. I was not a party to that agreement, but it would be impossible to deny that it has guided this body's consideration of judges since 2005 under both Democratic and Republican Presidents. If Republicans are going to suddenly junk that 6-year armistice, it could risk throwing the Senate into chaos on judicial nominees. Senate Republicans seem to want to declare open season for filibusters again--at least at the court of appeals level. Admittedly, and gladly, things as of late have gotten much better at the district court level. But the defeat of Caitlin Halligan would throw into chaos nominations at the circuit court level for a long time to come.

Any attempt to paint Caitlin Halligan as so far out of the mainstream that she presents an ``extraordinary circumstance'' is twisting her record far beyond recognition. Any attempt to do so would make any nominee, by a Democratic or a Republican President, susceptible to that unfair charge.

I have always said ideology matters, but I have also said candidates need only to be mainstream--not too far right, not too far left. I don't like nominees who are at the extremes, left or right, because they tend to be ideologues who want to make law not interpret and follow law. Well, Halligan fits the bill of a moderate, mainstream nominee precisely, to a ``T.''

Halligan has spent her career in government in both political and plenty of nonpolitical positions. She has worked as a lawyer's lawyer and has expressed few views on public issues. She has written virtually nothing, but at her hearing she did answer questions. She acknowledged that Executive power extends to indefinite detention of enemy combatants during time of war--something that might be disputed among mainstream Members of this body, particularly if they were citizens picked up on American soil. We just had that debate.

She acknowledged she would act with fealty to text and original intent in interpreting laws and the Constitution. She acknowledged she believes the second amendment protects an individual's right to bear arms, thereby vindicating the Heller case, and she acknowledged that the eighth amendment protects the constitutionality of the death penalty.

Some of my colleagues have tried to paint Halligan because she has filed briefs on behalf of clients, and they say that somehow indicates she would be an activist judge. First, I wish to point out that she is not the first nominee to come before the Senate and state that the views in the briefs she writes of her clients are not her own. Guess who did it regularly and repeatedly. Now-Chief Justice Roberts.

Did Democrats filibuster Justice Roberts because he did that? Did we say the views he wrote on behalf of clients had to be attributed to his own views? Of course not.

I wish to rebut some of the things I heard on this floor this morning about particular cases. First, while she did represent the State of New York against gun manufacturers, those cases were made moot by congressional law. In her hearing, Halligan recognized this and said unequivocally that she supports the individual right to bear arms.

Second, it is simply wrong to suggest that Caitlin Halligan is somehow outside the mainstream on immigration because she filed a brief advocating that businesses should not be rewarded for hiring illegal immigrants by getting out of the requirement that backpay should be awarded when the workers are exploited. Again, this was a brief filed on behalf of a client, not representing her own view.

Third, in the case of al-Marri, there is no argument that Halligan did anything other than make arguments on behalf of a client that were well within the mainstream. The administration abandoned the case and then charged al-Marri in civilian court--no different than the argument Halligan was making.

Why are we arguing about whether she deserves an up-or-down vote? Because, frankly, as with the Supreme Court, this is part of the attempt of the far right to pull the DC Circuit further and further away from the mainstream. Many conservatives tend to decry ``liberal judicial activism.'' But what they really want is judicial activism of the right. They don't want lawyers to be down the middle and interpret law; they want to change the way the whole government has operated for decades through the one unelected body, the article III body, the judiciary.

A truly moderate judicial philosophy shows respect for Congress, for executive agencies that interpret the law, and for well-settled understandings that the American people commonly hold about democracy. There is not a single question that Halligan adheres to these principles. She has extensive government experience. She understands the demands and rolls of the other branches.

She has been a responsible and rigorous advocate for all of her clients, including the people of New York. I have no doubt that as a judge she will be a responsible and rigorous advocate for the rule of law. Anyone who has listened to her answer an hour of questions in the committee and read her responses to the 150 questions that were submitted for the record cannot doubt but that she has an even and modest temperament and philosophy in her approach to legal questions.

Let me cite one example: When she was asked by Senator Grassley her view of deference to the legislative branch, here is how she responded:

I think that the job of a judge is to examine the constitutionality of a statute when a constitutional challenge is presented, but I think that authority has to be exercised very sparingly and very carefully.

Time and time again she answered similarly with clear and unambiguous answers.

Some of my colleagues have accused Halligan of lacking candor in her answers. Well, I have sat through a lot of hearings for nominees to Federal courts of appeals, and I know evasion when I see it. Halligan was not evasive. Some of the same people who say she lacked candor still defend Miguel Estrada who didn't answer a single question because he might come before them as a judge.

She answered questions thoughtfully and forthrightly and explained the context of any past statements that might have seemed to have contradicted her current views.

This morning, some of my colleagues on the other side of the aisle pointed to two things that she did not write to try to indicate she has activist views. First, she gave a speech in 2003 on behalf of her boss, Elliott Spitzer, that she did not write herself. In fact, she stepped in at the last minute to give the speech when he could not make it. She did not write it, and she clarified at the time that it did not reflect her personal views.

Second, she was a member of a committee that issued a report on Executive power and enemy combatants. She explained in the committee she hadn't seen the report and didn't agree with either its content or its tone. In her hearing she clearly stated her views on Executive power. This should have cleared up any doubt about her ability to recognize and respect the current state of law.

Finally, I wish to say a word about a red herring argument that has been raised today--that the workload of the DC Circuit is too low to confirm Halligan. I have expressed this concern, too, and, in fact, in 2008 we voted to take away one of the seats in the DC Circuit. It now has 11 judges rather than 12; but I, as well as many of my colleagues on both sides of the aisle have in the past reserved our concern for nominees of the 11th seat and what was then the 12th seat. Halligan has been nominated for the 9th seat. There are only 8 members on that court which now has a roster of 11. The 10th and 11th seats remain vacant. No one ever until now, on either side of the aisle, has ever argued that the DC Circuit should have only eight judges.

I wonder, if control of the body changes, which I don't think it will, or we get a Republican President, which I don't think we will, how quickly our colleagues on the other side of the aisle will abandon that foolish and specious argument.

I am concerned that we are hearing it now for the first time because the current makeup of the court happens to have five Republican appointees and three Democratic nominees.

The PRESIDING OFFICER. The time of the Senator has expired.

Mr. SCHUMER. Mr. President, I ask unanimous consent that I be given 1 1/2 more minutes to finish this point.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. SCHUMER. When we confirmed President Bush's nominee to the 11th seat in 2005, Thomas Griffith, his confirmation resulted in there being 121 pending cases per judge.

We did not hear a peep out of the other side that that was too low. Yet today there are 161 cases per judge. With Halligan's confirmation, it would go down to 143--far more than the 121 when all my colleagues on the other side of the aisle voted for Mr. Griffith, the Republican nominee of President Bush. So there is no reason to argue about caseload.

The fact is, if we cannot confirm Halligan, this will not go down as a vote about caseload, this will be recorded as a new bar for nominees.

In conclusion, when Caitlin Halligan drove with her father from her home in Kansas City to Harvard or when she was a standout student at Georgetown Law School or when she started her work for the New York Attorney General's Office, I am sure she could not have imagined that someday she would be the topic of a debate in the U.S. Senate about whether she was too radical or lacked the candor to be a judge.

I hope that when we vote and the debate is over, my colleagues recognize the truth here: Halligan is a sterling example of a public servant who has worked hard, earned every honor she has received, and fits squarely within the mainstream of judicial thought. She deserves an up-or-down vote today, and I will be proud to cast my vote for cloture on Caitlin Halligan's nomination.

I thank the Chair.

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