Caitlin Halligan, general counsel for Manhattan’s district attorney’s office, was nominated in 2010 to fill a vacancy on the D.C. Circuit Court of Appeals, and has been re-nominated four times since then. A cloture vote to move forward with her nomination failed 54-45 in 2011. The presidential judicial appointments – by custom – should be taken under consideration by the Senate, but not this one. For starters, Halligan is a pro-abortion, anti-gun zealot, who just received the support of Sen. Lindsey Graham.
As Paul Mirengoff of PowerLine wrote yesterday, Halligan would be more of an activist, than a judge.
…let’s start with national security, since the D.C. Circuit, where she would serve, is heavily involved in such cases. In 2004, Halligan signed a report issued by the Association of the Bar of the City of New York’s Committee on Federal Courts. As Ed Whelan has shown, this report, called “The Indefinite Detention of ‘Enemy Combatants’ and National Security in the Context of the War on Terror,” took extreme positions regarding the meaning of Due Process in the War on Terror — positions that the courts have rejected and that the Obama administration has had to retreat from.
To take just one example, the Report Halligan signed argues vigorously against the use of military commissions to try alien terrorists for violations of the laws of war, on the theory that the same constitutional protections afforded ordinary criminals should presumptively extend to those believed to be alien enemy combatants. In Halligan’s view, then, these individuals have a right to be tried in federal court. But even the Obama administration has abandoned the view that alien enemy combatants whose only connection with this country consists of their acts of war against it should enjoy the constitutional rights that American citizens have.
Halligan has also tried to bankrupt gun manufacturers by urging in court that they be held liable for the actions of those who misuse their product when harm results to others. And she opposed the Protection of Lawful Commerce in Arms Act (PLCAA).
Given this record, it isn’t surprising that the NRA opposes Halligan. It does so “based on [her] attacks on the Second Amendment rights of law-abiding Americans,” specifically her efforts “to undermine the [PLCCA]” which “was an essential protection both for the Second Amendment rights of honest Americans and for the continued existence of the domestic firearms industry as a supplier of arms for our nation’s defense.”
Halligan’s legal views on same-sex marriage are also problematic. In an opinion on the subject issued in her capacity as solicitor general of New York, she dismissed, with only the most cursory discussion, the possibility that the traditional definition of marriage might be justified by a state interest in “promoting procreation” and/or by an interest in the welfare of children. As Ed Whelan shows, Halligan’s analysis is one-sided and fails even to acknowledge counterarguments. This demonstrates extremism, superficiality, or both.
Additionally, according to Gary Marx, Director of the Faith and Freedom Coalition, and Carrie Severino, Chief Counsel and Policy Director of the Judicial Crisis Network, Halligan:
…filed a Supreme Court amicus brief claiming that pro-life protestors were engaging in extortion, under a legal theory that the U.S. Supreme Court rejected 8-1. She is also a donor to pro-abortion groups, including to the New York Women’s Foundation, which “provides grants to groups actively engaged in ‘…advocacy, and/or policy work…’ supporting access to abortions.”
Adding to her anti-gun disposition:
in 2003, while serving as the solicitor general for the State of New York, Halligan signed the brief in the New York Court of Appeals case The People vs. Sturm, Ruger & Co., a lawsuit brought against handgun manufacturers, wholesalers, and retailers. The lawsuit argued that gun manufacturers should be liable for threat to public safety caused by illegally possessed handguns.
Luckily, like most courts that have addressed such claims, New York’s highest court saw through the “public safety” facade and concluded that the connection between the alleged conduct (manufacturing guns) and the harm (murders and robberies) was “too tenuous and remote” to hold the industry liable.
Given her record, it’s no surprise as to why President Obama fancies her for the position. She’s just as wrong as he is on the issues. Additionally, Lincoln Caplan of the New York Times was also smitten by her.
Ms. Halligan is an excellent choice. She was a widely admired solicitor general of New York State, the successful leader of an appellate practice at a respected New York City corporate firm, and is both strongly credentialed and experienced. A letter on her behalf from a bipartisan group of appellate lawyers noted her “brilliant legal mind, her collegiality and fair-mindedness, and her abiding respect for the rule of law.” She has been endorsed by the New York Association of Chiefs of Police, the New York Sheriffs Association, the National District Attorneys Association and the National Conference of Women’s Bar Associations.
Of course, liberals are enthralled by her, and, like Caplan, are slamming Republicans since we’re out of “shameless, enormously time-wasting, basically unpatriotic excuses to sabotage Ms. Halligan’s nomination.” Nevertheless, it’s highly unlikely that Halligan, if confirmed, will be able to execute her duties in an impartial manner. A person who feels that pro-life protestors are extortionists and gun manufacturers are liable for violent crime is unfit to keep our Constitution safe. We need justices, who will defend the Bill of Rights, not relegate it to a Brawny paper towel.
As Ed Whelan of National Review noted on February 26, the reason for Graham’s reversal may be due to Sen. Schumer having something he wants in the immigration deal. Furthermore, Sen. Schumer is pressuring Sens. Rubio, McCain, and Flake to not oppose Halligan’s nomination as well.