EDITORIAL: Withdraw the Halligan nomination

President Obama can find a better liberal for the D.C. court

Senate Republicans have so far thwarted the nomination of Caitlin J. Halligan to the U.S. Court of Appeals for the District of Columbia Circuit, often a way station to the U.S. Supreme Court. On the evidence so far, she would be a rubber stamp for the worst of President Obama’s second-term agenda.

An attempt to end the Republican filibuster failed 51 to 41 on Wednesday, falling far short of the 60 votes needed to shut off debate and proceed to a vote on the nomination. Sen. Lisa Murkowski of Alaska was the only Republican to break ranks. Republicans can’t block every liberal offered a judicial robe, nor should they, and the filibuster should be reserved for extreme cases. This is an extreme case.

Ms. Halligan, a former New York solicitor general, has a disturbing track record on gun control, abortion and immigration issues. She has devoted her public career to advancing the legal theory that gun manufacturers should be held legally responsible for criminal acts committed with the guns they produce. This is as absurd as holding Georgetown University Law School responsible for the damage to the law that Ms. Halligan could do with her law degree. Fortunately, Congress enacted a liability shield law for gun manufacturers in 2005, taking that cornucopia of cash away from trial lawyers.

Ms. Halligan further argued that pro-life groups could be sued under racketeering statutes — a view the Supreme Court unanimously dismissed.

Senate Democrats say such concerns over ideology are not important because there is a judicial emergency with four of the D.C. Circuit’s 11 seats vacant. But the court isn’t a motel, and a “vacancy” sign alone doesn’t justify confirmation of a lawyer who takes a view of the Constitution as a “living document” with a meaning that changes according to the convenience of whomever is sitting in judgment. Sen. Chuck Grassley, Iowa Republican, said it best on the Senate floor that Ms. Halligan’s “stated view that courts seek ‘to solve problems and not just to adjudicate them’ indicates a willingness to abuse the role of a judge, should she be confirmed.”

Ms. Halligan’s nomination is the latest test of a bipartisan agreement, brokered by a so-called “Gang of 14” in 2005, that judicial nominees would only be filibustered in “extraordinary circumstances.” At the time, it was a Republican president’s nominees being filibustered by Democrats. All three of the seven Republican senators in that “gang” still in office — Sens. Susan M. Collins, John McCain and Lindsey Graham — apparently agreed Ms. Halligan’s nomination met the “extraordinary circumstances” threshold.

No Democrats joined Senate Republicans in opposing Ms. Halligan. Senate Majority Leader Harry Reid, Nevada Democrat, switched his vote to side with Republicans during the roll call in a procedural maneuver to enable him to bring back her nomination if defeated. There is no shortage of distinguished lawyers who are Democrats and reasonable and moderate liberals. Mr. Obama should withdraw the nomination and find a nominee who is not so extreme in her views.

The Washington Times

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