Federal Courts and Nominations

Senate GOP blocks Obama’s pick for D.C. appeals court


By James Oliphant
12:53 PM PST, December 6, 2011

Republicans blocked a vote on a President Obama’s pick for a seat on the critical federal appeals court in Washington Tuesday, dealing the White House a setback as it continues to struggle to fill judicial vacancies across the nation.

The GOP filibustered the nomination of Caitlin Halligan, a New York lawyer who Democrats contended was a moderate nominee who had won praise from some conservatives.

But Republicans said they were concerned about Halligan’s record on gun rights and terrorism detainee issues. All but one—Alaska’s Lisa Murkowski—voted to prevent her nomination from going forward for a final floor vote, where the judge could have been approved by a simple majority. The final tally was 54-45, six votes short of the 60 needed to break the filibuster.

It marked the second time this year that Republicans have filibustered a key Obama judicial nominee. They denied Californian Goodwin Liu a seat on the U.S. Court of Appeals in San Francisco in May. Obama eventually withdrew Liu’s nomination, and he was tapped by California Gov. Jerry Brown for a seat on the state Supreme Court instead.

Obama chose Halligan, a former New York state solicitor general who now serves as general counsel to the Manhattan District Attorney’s office, for the U.S. Court of Appeals fo the D.C. Circuit, considered one of the most important federal appellate courts in the nation because of its role in reviewing decisions made by government agencies.

A judgeship on the court is often viewed as a stepping stone to the Supreme Court and nominations to the D.C. Circuit have for years prompted clashes between Senate Democrats and Republicans. Indeed, Halligan was picked to replace John G. Roberts, who was elevated to the high court as its chief justice in 2005.

The vacancy has languished for five years and is now among three on the appeals court. Halligan remains the White House’s lone D.C. Circuit nominee. President George W. Bush was able to place three of his nominees to the court, but all came during his second term in office.

Senate Democrats and interest groups argued that in blocking Halligan, the GOP abandoned a standard that was agreed upon by both parties in 2005, when Republicans threatened to do away with the judicial filibuster entirely. Then, the so-called “Gang of 14”—a bipartisan group of senators—vowed to push through any nominee except in “extraordinary circumstances.”

Obama registered his disappointment in a White House statement, saying Halligan’s nomination “fell victim to the Republican pattern of obstructionism that puts party ahead of country.”

Senate Republicans are currently “blocking 20 other highly qualified judicial nominees,” Obama said. “These are distinguished nominees who, historically, would be confirmed without delay.”

GOP senators who were members of the Gang of 14 such as Sens. Susan Collins of Maine, Lindsey Graham of South Carolina and John McCain of Arizona all voted to block Halligan

“With today’s filibuster, the ‘Gang of 14’ deal on judicial nominations is officially dead and the partisan war over the courts has escalated to a dangerous new level, even while the vacancy rate on the federal judiciary has reached a crisis point,” said Douglas Kendall, president of the left-leaning Constitutional Accountability Center.

But Senate Minority Leader Mitch McConnell of Kentucky, in remarks on the Senate floor prior to the vote, said that Halligan was ill-suited for the court.

“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,” he said.

Republicans still invoke the name of Miguel Estrada, who was nominated to the D.C. Circuit by Bush but whose nomination was stalled by a filibuster eight years ago, as an example of Democratic obstructionism and hypocrisy. But ironically, Estrada has been a vocal supporter of Halligan’s nomination.

The Senate has confirmed 24 of Obama’s appeals court nominees and 97 district court nominees over the past three years, with 15 appellate vacancies and 67 trial court slots yet to be filled.

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