[Congressional Record Volume 157, Number 186 (Tuesday, December 6, 2011)]
[Pages S8350-S8351]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


  Mr. GRASSLEY. Madam President, soon we will be taking up the 
nomination of Caitlin Halligan to the DC District Court. I oppose the 
nomination. This is why the nomination should not be confirmed.
  Nominations to the DC Circuit deserve special scrutiny. The Court of 
Appeals, DC Circuit, hears cases affecting all Americans. This court 
frequently is the last stop for cases involving Federal statutes and 
regulations. Many view this court as second in importance only to our 
Supreme Court.
  As we all know, judges who sit on the DC Circuit are frequently 
considered for the Supreme Court. So there is a lot at stake with any 
nominee appointed to the DC Circuit.
  Ms. Halligan has an activist record. There are additional concerns 
regarding her judicial philosophy and her approach to interpreting the 
  The second amendment, for instance, in 2003, Ms. Halligan gave a 
speech where she discussed her role in suing gun manufacturers for 
criminal acts committed with handguns.
  At the time, Congress was debating the Protection of Lawful Commerce 
in Arms Act or, as most of us called it at the time, the gun liability 
bill. Those lawsuits, of course, were based on meritless legal theories 
and were specifically designed to drive gun manufacturers out of 
  As it turns out, while many of us were fighting in Congress to stop 
these nuisance lawsuits, Ms. Halligan was pursuing this precise type of 
litigation, based on the same bogus legal theories on behalf of the 
State of New York.
  In New York v. Sturm, Ms. Halligan argued that gun manufacturers 
contributed to a public nuisance of illegal handguns in the State. 
Therefore, she argued that gun manufacturers should be liable for 
criminal conduct of third parties. The New York appellate court, 
however, explicitly rejected her theory. The court explained that it 
had ``never recognized [the] common law public nuisance cause of 
action'' that Ms. Halligan had advanced. Moreover, the court correctly 
concluded that ``the Legislative and Executive branches are better 
suited to address the societal problems concerning the already heavily 
regulated commercial activity at issue.''
  While we were debating the gun liability bill, Ms. Halligan delivered 
a speech where she expressed her strong opposition to that legislation. 
She opposed it because it would stop the type of lawsuit she was 
pursuing. She said:

       If enacted, this would nullify lawsuits brought by nearly 
     30 cities and counties--including one filed by my office--as 
     well as scores of lawsuits brought by individual victims or 
     groups harmed by gun violence. . . . Such an action would 
     likely cut off at the pass any attempt by States to find 
     solutions--through the legal system or their own 
     legislatures--that might reduce gun crime or promote greater 
     responsibility among gun dealers.

  Later in that same speech, she expressed her view of the law and 
legal system. She said:

       Courts are the special friend of liberty. Time and again, 
     we have seen how the dynamics of our rule of law enables 
     enviable social progress and mobility.

  This statement is very troubling, especially as it relates to the 
nuisance lawsuit against gun manufacturers. Those lawsuits are a prime 
example of how activists on the far left try to use the courts to 
effect social policy changes they are somehow unable or unwilling to 
fight to achieve through the ballot box. That is why I believe those 
lawsuits represent not only bad policy but, more broadly, an activist 
approach to the law.
  I am also concerned about Ms. Halligan's views on the war on terror 
and the detention of enemy combatants. This is especially troubling 
because Ms. Halligan is the nominee for the DC Circuit Court, where we 
know a lot of these issues are often heard.
  In 2004, Ms. Halligan was a member of the New York City Bar 
Association that published a report entitled ``The Indefinite Detention 
of Enemy Combatants and National Security in the Context of the War on 
Terror.'' That report argued there were constitutional concerns with 
the detention of terrorists in military custody. It also argued 
vigorously against trying enemy combatants in military tribunals. 
Instead, it argued in favor of trying terrorists in civilian article 
III courts.
  As I said, Ms. Halligan is listed as one of the authors of that 
report. But when it came to testifying at her hearing, Ms. Halligan 
tried to distance herself from that report. She testified she did not 
become aware of the report until 2010. In a followup letter after her 
hearing, Ms. Halligan did concede ``it is quite possible that [a draft 
of the report] was sent to me,'' but she could not recall reading the 
  I recognize memories fade over time. But as I assess her testimony, I 
think it is noteworthy that at least four other members of the 
committee abstained from the final report. Ms. Halligan did not.
  I also point out that she coauthored an amicus brief before the 
Supreme Court in a 2009 case of Al-Marri v. Spagone. Ms. Halligan's 
brief in that case took a position similar to the 2004 report with 
respect to military detention of terrorists. In that case, she argued 
that the authorization for use of military force law did not authorize 
the seizure and indefinite military detention of a lawful permanent 
resident alien who conspired with al-Qaida to execute terror attacks on 
our country.
  The fact that Ms. Halligan coauthored this brief, pro bono, suggests 

[[Page S8351]]

me she supported the conclusions reached by the 2004 report. Again, 
this issue is particularly troublesome for a nominee to the DC Circuit, 
where, as I have already said, many of these questions are heard.
  There are a number of other aspects of her record that concern me. 
For instance, she authored an informal opinion on behalf of Attorney 
General Spitzer regarding New York's domestic relations law. That 
opinion invoked a theory of an evolving Constitution.
  As New York's solicitor general, Ms. Halligan was responsible for 
recommending to the attorney general that the State intervene in 
several high-profile Supreme Court cases. She filed amicus briefs that 
consistently took activist positions on controversial issues, such as 
abortion, affirmative action, immigration, and federalism.
  I will give you some instances. In Scheidler v. National Organization 
for Women, she supported NOW's claim that pro-life groups had engaged 
in extortion.
  In the twin affirmative action cases of Grutter v. Bollinger and 
Gratz v. Bollinger, she argued that the use of race in college and law 
school admissions was not only appropriate but constitutional.
  In Hoffman Plastics Compounds v. NLRB, she argued that the NLRB 
should have the authority to grant backpay to illegal aliens, even 
though Federal law prohibits illegal aliens from working in the United 
  Ms. Halligan represented New York in Massachusetts v. EPA, where a 
number of States argued that the Clean Air Act authorized and required 
the EPA to regulate automobile emissions and other greenhouse gases 
associated with climate change.
  These are just some of my many concerns regarding the nominee's 
judicial philosophy and her approach to constitutional interpretation.
  Based on her record, I do not believe she will be able to put aside 
her long record of liberal advocacy and be a fair and impartial jurist.
  Yesterday, before the votes on the judicial nominations we confirmed, 
I made a few remarks regarding the history of this seat. So I will 
briefly review again the approach I have been arguing for more than a 
decade--and I had the support of other Senators--that there are too 
many seats and it is an underworked circuit. It may come as a surprise 
to some, but this seat has been vacant for over 6 years. It became 
vacant in September 2005, when John Roberts was elevated to Chief 
Justice of our Supreme Court. But it has not been without a nominee for 
all that time.
  In June of 2006, President Bush nominated an eminently qualified 
individual for this seat, Peter Keisler. Mr. Keisler was widely lauded 
as a consensus bipartisan nominee. His distinguished record of public 
service included service as Acting Attorney General. Despite his broad 
bipartisan support and qualifications, Mr. Keisler waited 918 days for 
a committee vote that never came.
  But Mr. Keisler was not the only one of President Bush's nominees to 
the DC Circuit to receive a heightened level of scrutiny. In fact, when 
President Bush was President, his nominees to the DC Circuit did not 
simply receive heightened scrutiny but were subjected to every 
conceivable form of obstruction.
  Those of us who were here remember these debates very well: Estrada, 
Roberts, Griffith, Kavanaugh, Keisler, and Brown. All these nominees 
had difficult and lengthy processes. This included delays, multiple 
filibusters, multiple hearings, boycotting markups so we would not have 
a quorum to vote on their confirmation, including even invoking the 2-
hour rule during committee markup and other forms of obstruction.
  I have not suggested we repeat all the tactics used by the other side 
employed during the last Republican administration. I do believe, 
however, it is important to remind my colleagues of the precedents the 
other side established for nominees to this circuit.
  There is one other relevant fact I would like to briefly discuss in 
connection with this vote; that is, the workload of the DC Circuit. 
That gets back to what I have already referred to--that it has been 
underworked compared to other circuits.
  When Peter Keisler was nominated to the same seat, my friends on the 
other side objected to even holding a hearing for the nominee, based 
upon concerns about the workload of the DC Circuit. So here is 
something we tend to agree on, which has gone by the wayside now that 
we have a nominee from the President of the other party for this same 
seat. During Mr. Keisler's hearing, one of my Democratic colleagues 
summarized the threshold concerns. He said:

       Here are the questions that just loom out there: 1) Why are 
     we proceeding so fast here? 2) Is there a genuine need to 
     fill this seat? 3) Has the workload of the DC circuit not 
     gone down? 4) Should taxpayers be burdened with the cost of 
     filling that seat? 5) Does it not make sense, given the 
     passion with which arguments were made only a few years ago, 
     to examine these issues before we proceed?

  So we have five very important questions that are applicable today 
from a Member on the other side of the aisle.
  I have not heard these same concerns expressed by my friends on the 
other side with respect to Ms. Halligan's nomination. But that does not 
mean these issues have gone away.
  Statistics from the Administrative Office of the U.S. Courts show 
that caseloads on the DC Circuit have decreased markedly over the last 
several years. This decrease is evident in both the total number of 
appeals filed and the total number of appeals pending. Specifically, 
the total number of appeals filed decreased by over 14 percent between 
2005, when there were 1,379 appeals filed, and the year 2010, when only 
1,178 appeals were filed.
  The workload decline is also demonstrated in the per-panel and per-
judge statistics. Filings per panel and filings per judge show a 
decline of nearly 7 percent during this period. Pending appeals per 
panel dropped over 9 percent.
  When you examine the caseload statistics in relationship to other 
circuit courts, the DC Circuit ranks last in nearly every category. For 
instance, the DC Circuit has the fewest total appeals filed per panel 
and only half as many appeals filed per panel as the 10th circuit, 
which has the second fewest in the country. They have the fewest number 
of appeals terminated per judge. And again, they have roughly half as 
many terminations per judge as the second least busy circuit--again, 
the 10th circuit.
  They have the fewest signed written decisions per active judge, with 
57. By way of comparison, the second circuit has 5 times as many, with 
270 per active judge. The 10th circuit has roughly 4 times as many, 
with 240 per judge. They have fewest total appeals terminated per 
panel, with 347.
  By way of comparison, the 11th circuit had over 4 times as many total 
appeals terminated in 2010, with 1,574. The ninth circuit had nearly 4 
times as many, with 1,394. And the second and fifth circuits each had 
  Given these statistics, we should be having a discussion on reducing 
the staffing for this court, not filling a vacancy. This seat is not a 
judicial emergency. And with our massive debt and deficit, I don't 
understand why we would be spending our time and resources, 
particularly on a highly controversial nomination.
  Given the concerns I have about Ms. Halligan's record on the second 
amendment, the war on terror, and other issues, my concerns regarding 
her activist judicial philosophy and the Court's low workload, I oppose 
this nomination, and I urge my colleagues to do the same.
  I would note in closing the number of organizations expressing their 
opposition to this nomination: the American Conservative Union, the 
National Rifle Association, Gun Owners of America, Citizens Committee 
for the Right to Keep and Bear Arms, Committee for Justice, Concerned 
Women of America, the American Center for Law and Justice, Heritage 
Action, Liberty Counsel, Family Research Council, Eagle Forum, and 
there are others.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Vermont.
  Mr. LEAHY. Madam President, I understand morning business will now