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Public Statements

Reservation of Leader Time

Floor Speech

Location: Washington, DC


Mr. DURBIN. Mr. President, the issue before us is Caitlin Halligan's nomination for the DC Circuit Court. I spoke yesterday in support of her nomination. It is unfortunate she is going to be forced to face a filibuster; in other words, that the Republicans are going to insist on a 60-vote margin for her approval. That is unfortunate because we have tried in the beginning of this Senate session to avoid this kind of filibuster confrontation.

In the last several years, we have had over 400 filibusters, a recordbreaking number of filibusters in the Senate. What that means is the ordinary business of the Senate has been stopped 400 times, when those who were trying to bring up a nomination or bill or amendment faced a filibuster which required literally stretching the vote out over days and sometimes even over 1 week. That is unnecessary. It is frustrating as well.

There are a lot of things we need to do and a lot of issues we need to face. I am not afraid of taking on controversial votes on the floor. I think that was part of the job assignment coming here. I quoted many times my late friend, my colleague in the House, Mike Synar of Oklahoma, who used to get right in the face of his colleagues at the Democratic caucus when they complained about controversial votes on the floor and he said: If you don't want to fight fires, don't be a firefighter. If you don't want to vote on controversial issues, don't run for Congress. That is what this job is about.

I agree with that. As painful as some of these votes have been for me and others, we should never use that as an excuse for not tackling the important issues of our time. But this has become routine now--routine filibusters, trying to stop the Senate time and time again. What is particularly insidious about this strategy on this nominee is she is an extraordinarily well-qualified person. ``Unanimously well qualified,'' that is the rating she received from the American Bar Association. When we look at her resume and the things she has done, she stands out as not only an excellent candidate for DC Circuit but one of the best we have had for any judicial position. She is being stopped by the Republicans.

What is their argument? She was the solicitor general for the State of New York. The solicitor general is the hired attorney for a client known as the State of New York. So many times she was sent into court to argue a position that had been taken by the State or by the Governor, and she did her job as their counsel, to argue their position as convincingly as possible. That is what lawyers do every day in courtrooms all across America.

Back in the day when I practiced law, I didn't measure every client who came through the door to ask: Do I agree with every position my client has taken? Of course not. The belief is in our system of justice both sides deserve a voice in the courtroom and both sides, doing their best, give justice an opportunity. That is what Caitlin Halligan did as the solicitor general for the State of New York.

Listen to this. One of the arguments being made against her was that while she was solicitor general she served on a bar committee that issued a report that favored using article III courts for the prosecution of terrorists. Article III courts are the ordinary criminal courts of the land under our Constitution. The report argued that position. Many Republicans take an opposite position, that anyone accused of terrorism should be tried in a military tribunal, not an ordinary criminal court. They have held that position. They argue that position. They get red in the face saying that is the only way to take care of terrorists and they ignore reality.

The reality is, since 9/11, President Bush, as well as President Obama, had a choice between prosecuting terrorists in article III courts, the criminal courts or in military tribunals. In over 400 cases, they successfully, both Presidents, chose to prosecute accused terrorists in the article III courts--successfully. In only five cases--I believe it is five--have they used military tribunals. The overwhelming evidence is that the article III criminal courts have worked well. Prosecutions have been successful. This argument: Oh, if you have to read Miranda rights to an accused terrorist, we will never be able to prosecute them, they will lawyer up in a hurry. It doesn't quite work that way. In fact, we found the opposite to be true. When many of these folks with connections through terrorism are taken through the ordinary criminal process, they end up being more cooperative than through a military tribunal. That is a fact. A President and the Attorney General have to make that decision. So here is Caitlin Halligan, solicitor general for the State of New York, whose name is on a bar committee report favoring the use of article III courts, which overwhelmingly President Bush and President Obama decided to do, and now the Republicans say that disqualifies her, that disqualifies her from serving on the DC Circuit Court.

It also is ridiculous position to argue that because an attorney argues a point of view in a case, that is her own point of view. I refer my colleagues to the testimony of Justice Roberts when he was up before the Senate Judiciary Committee, when he was asked point blank: You have represented some pretty unsavory clients, some people we might disagree with, does this reflect your point of view? He reminded us what jurisprudence and justice are about in this country, that you will have attorneys arguing their clients' point of view, doing their best for their client, whether they happen to agree with that client's philosophy or not.

Every attorney is bound to stand by the truth when it comes to testimony. You can never ever allow a client to misstate the truth knowingly in a courtroom. That is hard and fast. But when it comes to a point of view, for goodness' sake, good attorneys argue the best case they can for the people they represent, as Caitlin Halligan did. As Justice Roberts reminded us, it is central to the issue of American justice. One of our most famous Presidents, John Adams, you would think ruined his political career because when the Boston Massacre occurred, John Adams, the attorney in Boston, stood and said I will defend the British soldiers. He was defending the British soldiers who had killed American soldiers. He did it. That was his responsibility as an attorney. He went on to be elected President.

This argument against Caitlin Halligan, from this point of view, is as empty as any argument I have heard on the floor of the Senate and the Republicans insist on filibustering again her nomination over such a week reed of an argument. It is embarrassing. It is troubling. It calls into question whether the agreement earlier this year on rules changes in the Senate, a bipartisan effort to try to get this Chamber back on track to solving problems on a bipartisan basis, did the job.

We had the first filibuster in history of a Secretary of Defense--the first. Chuck Hagel was held up for 10 days because of a Republican filibuster, the first time that has ever occurred. Now we follow it with this filibuster of this DC Circuit nominee? I don't think we have achieved much in our rules reform. I don't think our spirit of bipartisanship has shown much in terms of results.

I hate to suggest this, but if this is an indication of where we are headed, we need to revisit the rules again. We need to go back to them again. I am sorry to say it because I was hopeful a bipartisan approach to dealing with these issues would work. It is the best thing for this Chamber--for the people serving and for the history of this institution. But if this Caitlin Halligan nomination is an indication of things to come, we have to revisit the rules. If we are now going to filibuster based on such weak arguments, then I think we need to revisit the rules.

They said in politics when I was growing up--one of the great politicians I worked for, a man named Cecil Partee, used to say for every political position you take there is a good reason--and a real reason. So the good reason, at least in their eyes, on the Republican side, is that Caitlin Halligan argued in court for positions they do not agree with. As I said earlier, I think that is an empty accusation. What is the real reason? There is a real reason why they are opposing Caitlin Halligan time and again. It is because the DC Circuit Court is one of the most important courts in America, some argue as important as the U.S. Supreme Court, because the DC Circuit Court, time and again, considers the rules and regulations and laws which are promulgated in Washington. It is the first court of review and if that bench on the DC Circuit is tipped one way or the other, too conservative or too liberal, it shows.

Right now it has been tipped toward the conservative side. Republicans engineered a deal when we were, years ago, embroiled in controversy over this issue of filibustering judicial nominees. They engineered and brokered a deal to make several appointments to the DC Circuit that tipped the balance toward the conservative side.

Now, out of the 11 positions in the DC Circuit, only 7 are filled. We are trying to fill the 8th, and they are worried that if Caitlin Halligan comes in--and she is not as conservative as they wish--it may be closer to balance. Isn't that what we want, a more balanced court? It is what we should want. It is the real reason the Republicans oppose her nomination.

I am sorry for her that she has to be a victim of this political strategy. It doesn't have much to do with her personally, and I hope a few Republicans who are necessary will step up and give us a chance to vote on her nomination; otherwise, we are back into the doldrums again in terms of the Senate embroiled in controversy, stuck on filibusters.

Since no one else is seeking the floor at this moment, I ask unanimous consent that the time consumed during quorum calls be charged equally to both sides.


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