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Nomination of Caitlin Halligan

Floor Speech

Location: Washington, DC

Mr. McCONNELL. Now, Madam President, on yet another topic--there are a number of things going on this week--today the Senate will vote on the nomination of Caitlin Halligan to the U.S. Court of Appeals for the DC Circuit. I will be opposing this nominee, and I would like to explain why.

First and foremost is Ms. Halligan's record of advocacy for an activist view of the judiciary and a legal career that leads any reasonable person to conclude that she would bring that activism right on to the court. As I have said many times before, the proper role of a judge is that of an impartial arbiter who gives everybody a fair shake under the law as it exists. The role of a judge in our system, in other words, is to determine what the law says not what they or anybody else wants it to say. Yet looking over Ms. Halligan's record, it is pretty clear she does not share that view.

In Ms. Halligan's view, the courts are not so much a forum for the evenhanded application of the law as a place where a judge can work out his or her own idea of what society should look like. As she herself once put it: The courts are a means to achieve ``social progress,'' with judges presumably writing the script.

Well, my own view is that if the American people want to change the law, then they have elected representatives to do that, and these elected representatives are accountable to them. This also happens to be how the Founders intended it, and it is what the American people expect of their judges: to be fair, impartial arbiters. But that is not what they would get from a Judge Halligan.

So how do we know this? Well, it is true that like many of this President's other judicial nominees, Ms. Halligan repudiated President Obama's own off-stated ``empathy standard'' for choosing judges and disclaimed an activist bent in her confirmation hearings. But her record belies this now familiar confirmation conversion.

Let's take a quick look at her record to see what it does suggest about the kind of judge she would be.

On the second amendment: As solicitor general of New York, Ms. Halligan advanced the dubious legal theory that those who make firearms should be liable for third parties who misuse them criminally. The State court in New York rejected the theory, noting it had never recognized such a novel claim. Moreover, the court called what Ms. Halligan wanted it to do to manufacturers of a legal product ``legally inappropriate.''

So let me say again, the New York Appellate Court termed Ms. Halligan's activist and novel legal theory to be ``legally inappropriate.'' The Congress passed legislation on a wide bipartisan basis to stop these sorts of lawsuits because they were an abuse of the legal process. Undeterred, Ms. Halligan then chose to file an amicus brief in the Second Circuit Court of Appeals in another frivolous case against firearms manufacturers. Not surprisingly, she lost that case too.

What about her views on enemy combatants?

In 2005, the U.S. Supreme Court ruled in Hamdi v. Rumsfeld that the President has the legal authority to detain as enemy combatants individuals who are associated with al-Qaida. Yet despite this ruling, Ms. Halligan filed an amicus brief years later--years after that--arguing that the President did not possess this legal authority.

On abortion: Ms. Halligan filed an amicus brief in the U.S. Supreme Court arguing that pro-life protesters--protesters--had engaged in ``extortion'' within the meaning of Federal law. The Supreme Court roundly rejected this theory 8 to 1.

On immigration: Ms. Halligan chose to file an amicus brief in the Supreme Court arguing that the National Labor Relations Board should have the legal authority to grant backpay to illegal aliens even though Federal law prohibits illegal aliens from working in the United States in the first place. Fortunately, the Court sided with the law and disagreed with Ms. Halligan on that legal theory too.

The point is that even in cases where the law is perfectly clear or the courts have already spoken, including the Supreme Court, Ms. Halligan chose to get involved anyway, using arguments that had already been rejected either by the courts, the legislature or, in the case of frivolous claims against gun manufacturers, by both. In other words, Ms. Halligan has time and time again sought to push her own views over and above those of the courts or those of the people as reflected in the law.

Ms. Halligan's record strongly suggests that she would not view a seat on the U.S. appeals court as an opportunity to evenhandedly adjudicate disputes between parties based on the law but instead as an opportunity to put her thumb on the scale in favor of whatever individual or group cause in which she happens to believe.

So, Madam President, we should not be putting these kinds of activists on the bench. I have nothing against the nominee personally. I just believe, as I think most Americans do, that we should be putting people on the bench who are committed to an evenhanded interpretation of the law so everyone who walks into a courtroom knows he or she will have a fair shake. In my view, Ms. Halligan is not such a nominee. On the contrary, based on her record and her past statements, I think she would use the court to put her activist judicial philosophy into practice, and for that reason alone she should not be confirmed. So I will be voting against cloture on this nomination, and I urge my colleagues to do the same.

I yield the floor.


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