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Mr. SCHUMER. Mr. President, first let me compliment my colleague from Delaware not only for his typically excellent remarks today but also for his vigilance on these issues. He is a relatively newer member of the Judiciary Committee, but he has jumped into these issues with tremendous eagerness, intelligence, balance, and effectiveness. So I thank him for his great remarks.
I too rise today in enthusiastic support of the nominee to the Court of Appeals for the DC Circuit, Caitlin Halligan. Ms. Halligan has been waiting 23 months for an up-or-down vote. More importantly, the entire country has been waiting to fill this position--a judgeship on the second most important court of the Nation--for 23 months.
The question we are going to answer tomorrow is, Can we take some of our bipartisan good will, our desire to legislate and get things done for the country, and apply it to a nominee who is the very picture of moderation and mainstream legal thinking, a nominee who has dedicated her entire career to public service, and a nominee who would be only the sixth woman to join this court in its 212-year history? That is right--there have only been five women to serve on the DC Circuit in 212 years.
The D.C. Circuit is currently one-third vacant. Four of its 11 slots--37 percent--are without active judges. Ms. Halligan is one of the two nominees for these four slots.
Two years ago, when Halligan was first filibustered, many of my colleagues decided they could not support a cloture motion because she would have been the tenth judge on an 11-member court, a court they perceived as understaffed and overworked. I take issue with the fundamental premise. The D.C. Circuit hears many of the most complex and important cases in the country. The court hears appeals from virtually every regulatory agency, reviews statutes, has jurisdiction over numerous terrorism cases, including those from Guantanamo Bay. But even if I were to accept the faulty premise that the court somehow needs fewer judges than it ever had, the court that hears the most complex cases, the court is now near a crisis point. There are only seven active judges currently sitting. What is more, the caseload per judge has risen by 21 percent--21 percent since the last judge was confirmed, and that was under President Bush's administration.
I think there is now more than compelling evidence that the caseload-based argument against Halligan is gone, and you would have thought our colleagues on the other side of the aisle would say: OK, four vacancies, the last vacancy filled under Bush, we can now move to support her. But they do not.
What else could possibly prevent a vote on Halligan? Is it her ideology? I submit to my colleagues it cannot possibly be her ideology. If zero is extremely liberal and 10 is extremely conservative, Halligan falls right in the sweet spot of judges who both President Obama and President Clinton have generally nominated, 5s and 4s, maybe even a 6 or two. Opposing Halligan on her ideology, opposing even a cloture vote based on her ideology, can mean only one of two things:
First, that some of my colleagues have misread her record. Let me clear up a few things today. Halligan is not anti-gun nor anti-second amendment. She has clearly said at her hearing she fully supports the individual second amendment right to bear arms as the Supreme Court decided in Heller. Her briefs for the State of New York--which were product liability cases, not second amendment cases--were briefs for a client and not her own views, just as Chief Justice Roberts described his work for clients. In fact, Hallligan, like many of my colleagues, enjoys shooting and does so from time to time on weekends. Anyone who accepted a meeting with her would have discovered this.
Halligan is not anti-law enforcement in any way. She spent most of her career in law enforcement. New York Police Department Commissioner Ray Kelly, hardly a shrinking violet, hardly a wallflower--he is a tough-on-crime guy; that is why I like him so much, and he is one of the most respected law chiefs in the country--has written a letter in full support of her.
Specifically, Halligan has lived with the consequences of terrorism. She lives not far from the World Trade Center site, and she represented the Redevelopment Corporation there in its post-9/11 efforts. She has personally handled terrorism cases in the New York Manhattan office. In her hearing she stated her beliefs regarding the executive's power to detain terrorism suspects.
I have heard evasive nominees. She was not evasive. She gave completely clear answers to every single question that was asked.
The second possible reason my colleagues might decide to oppose cloture for such a reasonable candidate and such a gifted lawyer is that they want to put their own judges on the D.C. Circuit and they would rather leave it vacant than move Halligan. In other words, it is not that Halligan is extreme--unacceptably extreme in her views; it is simply that she doesn't share all their views. It is one thing to fight against certain judicial nominees with the sincere belief that they are outside the judicial mainstream. It is another for my colleagues to fight against a nominee because they disagree with him or her.
I always look for judges, when I nominate them, who are moderate. I don't like judges too far right. That is obvious. But I equally do not like judges too far left. My judicial panel will tell you, if I think a judge is too far left I will not nominate them, because judges at the extremes, whichever extreme, tend to want to make law, not interpret law. The best judges are those who see things clearly and fairly, not through an ideological lens, whether that lens is colored red or blue. Those are judges who understand the law, understand the role of each branch of government, understand the proper balance between State and Federal power, and understand the people who come before the bench.
I say one other thing to my colleagues. I just finished working with a bunch, four of us on each side, on coming up with a compromise so we could work together better. I want to let my colleagues know--I have done it personally with a few--that this vote, the desire to actually filibuster Caitlin Halligan, is causing a lot of consternation on our side. Clearly, this is a judge who deserves an up-or-down vote. One of the reasons that many of my colleagues--myself included--thought we ought to change the rules was because a judge such as Caitlin Halligan, a nominee such as Caitlin Halligan, should not be filibustered. I have respect for my friends on the other side of the aisle, but when they say--one of my colleagues I heard say this morning--that this one brief she signed with a bunch of others was extraordinary circumstances, that did not ring true. If that is extraordinary circumstances, wearing the wrong color tie or the wrong color blouse would be extraordinary circumstances.
She has a long record. They can hardly find anything. They come up with this one brief. They may not like it. But to say it is extraordinary circumstances? No.
I say to my colleagues, I plead with them--we are trying to start off on a good foot here. We are working together better than we have worked in a long time. Each side has to give. Part of the deal is amendments. They are going to get a lot of amendments on the other side of the aisle. But part of our deal is not to block things for the sake of blocking them or because there is another agenda. That goes not just for blocking legislation but for blocking nominees.
It is true in the deal we made, the agreement we made, it was only for district court judges. That could go seriatim. But the spirit of our compromise applies to this court of appeals nominee, and I have not heard a single good reason why she should be filibustered.
People disagree with her. I voted against some of George Bush's nominees because I thought their views were not quite mine, even if they were not extreme. And everyone on the other side of the aisle has the right to do the same. But not filibuster.
This court is a very important court. We know it makes lots of decisions about government. But that does not give license to block a nominee on what seem to be trivial grounds, inconsequential grounds, given her long career.
So again I urge, plead with my colleagues, please reconsider this cloture vote. Please give her the 60 votes she needs so she can come to the floor and get the up-or-down vote she has waited 23 months for. It violates fairness. It violates the comity we are trying to restore in this body. It violates simple justice to vote no on cloture and to filibuster Caitlin Halligan.
I yield the floor.
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