Senate to Consider Controversial Judicial Nominee While No One is Watching

As Christmas draws closer and Congress moves towards recess, there are several budgetary-related items that must get accomplished before the end-of-the-year. The holidays also means Congress begins a furious effort to move controversial items while fewer Americans are paying attention. This year, one such controversial item is the nomination of Caitlin Halligan to the United States D.C. Circuit Court.

By way of background, the D.C. Circuit Court is generally considered the second most powerful court (behind only the U.S. Supreme Court) in the nation. The D.C. Circuit Court plays a critical role in national security matters, has considerable regulatory review authority, and is frequently a springboard for judges that are later nominated to the Supreme Court (Justice Roberts was a D.C. Circuit Judge when nominated).

For all of these reasons and more, nominations to the D.C. Circuit are customarily considered with great deliberation and care. If fact, one need look no further than the previous nominations of Miguel Estrada and Peter Keisler to find examples of thoroughly qualified nominees who were vigorously opposed and ultimately defeated.

With this in mind, it is troubling when nominees of this significance – especially ones as controversial as Ms. Halligan – are considered during a truncated end-of-year time period. However, careful observation suggests that this is happening because Ms. Halligan’s record cannot withstand the rigorous examination that is typically required of nominees to the D.C. Circuit Court.

While there are numerous areas where Ms. Halligan’s record is cause for concern, I will briefly mention just three that are particularly problematic: judicial activism, national security, and the Second Amendment.

First, in a brief submitted to the U.S. Supreme Court, Ms. Halligan suggested that the Court should interpret the Eighth Amendment’s ban on cruel and unusual punishment to prohibit capital punishment of juveniles convicted of murder. Regardless of one’s views on capital punishment in such situations, it is Ms. Halligan’s dependence on an emerging “legislative consensus” for this conclusion that is troubling. Ms. Halligan seems to forget that it is not the role of the Judiciary to determine legislative consensus. That role belongs to the Legislative Branch, and Ms. Halligan’s insertion of the Judiciary into that process is cause for concern.

Next, Ms. Hallligan signed a 2004 New York City Bar Association report that argued for significantly broader “rights” for detainees in the War on Terror. Among other things, the report called for suspected terrorists to have access to American civilian courts, and suggested that the congressional authorization of force does not allow for detention of enemy combatants while that military engagement continues. These positions are constitutionally suspect and undermine our national security.

Finally, Ms. Halligan has demonstrated a great deal of hostility for the Second Amendment. Among other things, Ms. Halligan has called for gun manufacturers to be held liable when their product is used for criminal purposes. As ludicrous as it sounds, this position is no different than holding a homebuilder liable when the home is used to deal drugs, or holding a baseball bat manufacturer liable when the bat is used in an assault. Virtually every product on the market could conceivably be used in a criminal manner, and to suggest that the manufacturer is to blame is very troubling. This is especially true when the product in question is singled out for protection by the Second Amendment.

These are just three basic reasons why the U.S. Senate should not move forward with Ms. Halligan’s nomination. The Senate has scheduled a cloture vote on Ms. Halligan’s nomination for tomorrow, December 6th. Please add your voice to the numerous calls for the Senate to reject Ms. Halligan’s nomination today. Follow this link to the ACLJ’s contact congress tool to quickly and easily call or email your Senators.

12.6.2011 Update: The Senate voted 54-45, failing to obtain the 60 votes needed to confirm Ms. Halligan's nomination.  Because thousands of you took action contacting your Senators, this judicial activist nominee will not slip through the Senate unexamined.