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Nomination of Caitlin Halligan

Floor Speech

By:
Date:
Location: Washington, DC

Mr. DURBIN. Mr. President, this week the Senate is going to have an opportunity to confirm the nomination of Caitlin Halligan to serve on the Court of Appeals for the DC Circuit. In doing so, we can correct a mistake the Senate made in the last Congress.

Ms. Halligan is an extraordinarily well-qualified nominee. She has the intellect, experience, temperament to be an outstanding Federal appellate judge.

On December 6, 2011, Caitlin Halligan's nomination was stopped by a filibuster by Republican Senators. Forty-five Republicans voted against the cloture motion on her nomination, thus denying Ms. Halligan an up-or-down vote. That killed her nomination for that Congress.

She has now been renominated in this Congress for the DC Circuit, and the court needs her. Right now there are only seven active status judges on the DC Circuit. There are supposed to be 11. Four seats are vacant, including one vacancy that opened just last month. This is untenable.

Retired DC Circuit Judge Patricia Wald has served as chief judge of the circuit for 5 years. She wrote in the Washington Post last month that:

There is cause for extreme concern that Congress is systematically denying the court the human resources it needs to carry out its weighty mandates.

It is time to address this vacancy situation by giving Ms. Halligan an up-or-down vote and confirming her nomination. She is eminently qualified. She graduated from Princeton University and the Georgetown University School of Law where she served as managing editor of the law review. She clerked for Supreme Court Justice Stephen Breyer. She served for 7 years as solicitor general for the State of New York, representing that State in a broad range of litigation. She currently serves as general counsel at the New York County district attorney's office. She has argued five cases before the U.S. Supreme Court and served as counsel in dozens more cases in that same Court. The American Bar Association has given her a unanimous ``well-qualified'' rating to serve on the Federal bench.

Ms. Halligan's legal views are well within the political mainstream. She has received widespread support from across the political spectrum. For example, the National District Attorneys Association, the prosecutors, said she ``would be an outstanding addition'' to the DC Circuit. She also has the support of law enforcement organizations and prominent conservative lawyers.

There is simply nothing in her background that constitutes the ``extraordinary circumstances'' that the so-called Gang of 14 said we are supposed to use as a standard to justify a filibuster. There are no--repeat no--legitimate questions about Ms. Halligan's competence or ethics or temperament or ideology or fitness to serve on the bench. All she has done throughout her career is serve as an excellent lawyer on behalf of her clients.

When Ms. Halligan was filibustered in 2011, some of my Republican colleagues cited two main arguments against her. First, they claimed the DC Circuit didn't need another judge since they could handle the workload with eight judges. The DC Circuit may have had eight judges in 2011, but now there are only seven, so that argument doesn't hold.

Second, Republicans claim that when Ms. Halligan was solicitor general of New York, she advocated positions in litigations that they, the Republicans, disagreed with. Is that the standard, that a lawyer represented a client with a position that might not be the lawyer's personal position or a Senator's personal position? It has been a few years since I represented clients, but I believe that under our system of legal representation, that is not the standard; that lawyers must only represent those people they agree with.

In our system of law, the system where the scales of justice are held by the lady with the blindfold, we are supposed to give justice to both sides and hope at the end of the day the system serves us.

Ms. Halligan advocated positions at the direction of her client, which happened to be the State of New York. In the American legal tradition, lawyers are not supposed to be held to the views of their clients.

As Chief Justice John Roberts said during his confirmation hearing--and I remember this:

It is a basic principle in our system that lawyers represent clients and you do not ascribe the position of a client to the lawyer. It's a position that goes back to John Adams and the Revolution.

Those who read the book about John Adams often wonder how this man became President of the United States after representing British soldiers at a massacre in the city of Boston.

Ms. Halligan should not be filibustered because she represented clients with whom some Senators don't always agree.

The bottom line is this: Our country needs excellent judges serving on the Federal bench. If qualified mainstream judicial nominees cannot be considered fairly by the Senate on their merits, then good lawyers are going to stop putting their name in for consideration. Maybe that is the ultimate goal on the other side by some of the Senators who object to Ms. Halligan.

Why would a top-notch lawyer volunteer to go through a long, excruciating judicial confirmation if the lawyer is only going to be filibustered at the end for reasons that don't have a thing to do with their qualifications? We are going to end up with a Federal bench that is either empty or lacks the excellence we should require.

Caitlin Halligan deserves an up-or-down vote on the merits. The Senate made a mistake in denying her that vote in 2011. Let's correct that mistake this week. She has clearly demonstrated she can serve the DC Circuit with distinction. She deserves that chance on the merits.

I yield the floor and suggest the absence of a quorum.


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