*UPDATE* - Caitlin Halligan has been defeated in a cloture vote. Senate Republicans held firm (including Scott Brown and the Maine twins, but excluding Alaska's Lisa Murkowksi) and blocked the nomination. Self-stylized "moderate" Democrats like Ben Nelson, Joe Manchin, Claire McCaskill, and Bob Casey all voted to move this radical nomination (see below) forward. The final tally was 54-45, six votes shy of the requisite 60. As I've written before, I oppose the practice of judicial filibusters on principle, but Democrats set this precedent, and should be forced to wear its consequences:
Many conservatives strenuously objected to Democrats' obstructionist tactics on this front during the Bush years, arguing that Congress was abusing its "advice and consent" role in the nomination process. Nowhere does the Constitution state that a Senate supermajority is required to confirm a presidential appointment to the third branch. In fact, James Madison once argued that a supermajority should be necessary to block a president's pick. Undeterred, Democrats charged ahead with their ideology-driven obstruction, pushing the Senate to the brink of "nuclear" confrontation. Now that the roles are reversed, Republicans should avail themselves of the precedent established by their colleagues across the aisle, no matter how distasteful it may seem. Democrats made this bed. Let them lie in it.
A timely reminder of why conservatives of all stripes ought to rally around the eventual GOP nominee, courtesy of President Obama:
A nominee tapped last year by President Obama to serve on the U.S. Court of Appeals for the District of Columbia Circuit will face a cloture vote in the Senate on Tuesday amid opposition from Republicans in part over her record on gun rights and detainee policy. Caitlin J. Halligan, a former New York state solicitor general who serves as general counsel for the New York County District Attorney’s Office, was nominated by Obama in September 2010 to serve on the 11-member court. In March, her nomination was approved by the Senate Judiciary Committee on a 10-to-8, party-line vote; since then, she has been waiting for a confirmation vote by the full Senate. When the chamber votes Tuesday on ending debate on Halligan’s nomination, Democrats will probably face a tough task in rounding up the 60 votes necessary to proceed.
Why are Second Amendment (and pro-life) groups vociferously opposing Halligan's nomination? Red State's Moe Lane explains:
Ms. Halligan’s confirmation has been vigorously opposed by the National Rifle Association, Gun Owners of America, and Committee for Justice. Republicans on the Senate Judiciary Committee unanimously rejected her confirmation earlier this year. In 2003, as Solicitor General of New York, Halligan attempted to hold gun manufacturers liable for criminal acts committed with handguns. She filed briefs in federal court arguing for the unconstitutionality of the Protection of Lawful Commerce in Arms Act, which the National Rifle Association described as providing “essential protection…for the Second Amendment rights of honest Americans[.]”
Halligan also filed an amicus brief in arguing that federal RICO laws should be used against pro-life groups. She repeatedly attempted to hijack the federal court system in order to impose her own political beliefs on the general public.
Halligan also served on a committee that issued a report castigating Bush-era counter-terrorism policies (many of which The One has continued). The nominee now claims she was unaware of said report when it was released. Senate sources tell me the cloture vote -- the only vote that really matters here -- is likely to come early this afternoon. I'm told GOP opposition to the nomination is "building momentum." Harry Reid needs to rustle up 60 votes to advance the nomination. I wonder if he'll command 100 percent loyalty from his own caucus. How many vulnerable Democrats (of which there are many) from red or purple states aren't especially interested in attaching their name to an anti-gun, pro-abortion rights activist? One of the Democrats' go-to talking points on this controversy involves the issue of lengthy vacancies in crucial federal courts. That's not a groundless argument, but it's a bit strange coming from the crowd that couldn't have cared less about mounting judicial vacancies just a few short years ago. Funny how that works.
Since Democrats barged through the judicial filibuster door during the Bush years, Senate Republicans are now answering in kind. They blocked the nomination of radical leftist Goodwin Liu last spring, and they may strike again today. The Bush-era 'Gang of 14' established a standard that judicial filibusters are permissible only in "extraordinary" circumstances. (Recall that the 'gang' was formed to head off a GOP attempt to nuke the practice altogether, triggered by Democrats' unprecedented obstruction of majority-supported nominees). Senate Republican Leader Mitch McConnell argued this morning that Halligan meets the extraordinary criteria:
...Like many of this President’s other judicial nominees, Ms. Halligan repudiated President Obama’s own oft-stated ‘empathy standard’ for choosing judges, and disclaimed an activist bent in her confirmation hearing. But her record belies this now-familiar confirmation conversion. Let’s just take a quick look at her record to see what it does suggest about the kind of judge she’d 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 that 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.’ Let me say that 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.
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 AQ. Yet despite this ruling, Ms. Halligan filed an amicus brief years later 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 protestors had engaged in ‘extortion’ within the meaning of federal law. The Supreme Court roundly rejected this legal theory, 8-1.
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 back pay 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 here is that even in cases where the law was perfectly clear, or the courts had 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 the gun manufacturers, by both. In other words, Ms. Halligan has time and 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 wouldn’t view a seat on the U.S. Appeals Court as an opportunity to adjudicate, even-handedly, 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 or cause she happens to believe in. We shouldn’t be putting activists on the bench.
Senate Judiciary Committee ranking member Charles Grassley also just concluded a floor speech opposing Halligan's nomination and upbraiding Democrats for their hypocrisy. Will Reid corral all 53 Democrats and seven Republicans to break this filibuster? Perhaps conflicted Republicans ought to consider the Obama Standard on these matters. Let me refresh their memories:
On January 29, 2006, Mr. Obama told George Stephanopulos on "This Week" that he would "be supporting the filibuster because I think Judge Alito, in fact, is somebody who is contrary to core American values, not just liberal values, you know. When you look at his decisions in particular during times of war, we need a court that is independent and is going to provide some check on the executive branch, and he has not shown himself willing to do that repeatedly."
For what it's worth, Liu's nomination fell eight votes shy of advancing, as bipartisan opposition sunk any hopes for a successful cloture tally. 'No' votes included five former 'gang' members. Using that outcome as a baseline, Harry Reid may have his work cut out for him today. Stay tuned.