- The Washington Times - Tuesday, March 5, 2013

President Obama’s effort to reshape the federal judiciary will enter a new phase of open warfare with Republican lawmakers Wednesday when the Senate votes on whether to break the filibuster of Caitlin Halligan’s nomination for a seat on the prestigious D.C. Circuit Court of Appeals.

Republicans have been blocking Ms. Halligan’s nomination for two years, calling her an activist on gun control, abortion rights and back pay for illegal immigrant workers. Democrats say she would be an impartial jurist and that she deserves an up-or-down vote based on her qualifications, which include serving as solicitor general for the state of New York and clerking for Supreme Court Justice Stephen G. Breyer.

Her nomination is a flash point in Mr. Obama’s second-term attempt to speed up judicial confirmations — an area where he has trailed recent presidents. She also represents Mr. Obama’s more successful pursuit of increasing the diversity of the federal bench.

Ms. Halligan would be only the sixth woman in the 212-year history of the D.C. appeals court, which is considered second only to the Supreme Court in level of importance. Four of the court’s 11 seats are vacant, and Ms. Halligan’s nomination has received extra attention due to the court’s central role in resolving federal issues ranging from the war on terror to EPA rule-making.


“Nominees to the D.C. Circuit are critically important, and they get incredible scrutiny,” said Carl Tobias, a law professor at the University of Richmond law school. “Obama is the first president in six decades not to appoint anyone to that court.”

On Monday, the Senate confirmed two of Mr. Obama’s nominees for district court seats, including Pamela Chen for the eastern district of New York.

Sen. Charles E. Schumer, New York Democrat and a member of the Senate Judiciary Committee, said the openly gay Ms. Chen “will be only the second female Chinese-American [lifetime] judge in U.S. history.” He called it “another step forward in our path to making the judiciary reflect both the talent and depth of experience of our communities.”

While judicial vacancies have risen during Mr. Obama’s presidency, the judges who have been confirmed include a far higher percentage of women and minorities than the nominations of his predecessors.

To date, of the 177 judges whom Mr. Obama has successfully appointed, 41.2 percent are women, nearly twice the percentage of female judges appointed by Republican President George W. Bush. Thirty-six percent of Mr. Obama’s judges have been racial minorities, exceeding Democratic President Bill Clinton’s record of 29 percent.

And four of Mr. Obama’s confirmed judges are gay, as are four of his pending judicial nominees. Since advocacy groups began keeping track of judges, there had been only one other openly gay federal judge — Deborah Batts, appointed by Mr. Clinton to a district court seat in New York in 1994.

Wednesday’s vote on the Halligan nomination will once again raise thorny questions about filibusters.

Democrats launched the first filibusters of appeals court nominees during the Bush administration, beginning with Miguel Estrada, whom Mr. Bush tapped to serve on the same D.C. appeals court that Mr. Halligan is now up for.

Nine other judicial nomination filibusters followed, leading Republicans in 2005 to contemplate changing filibuster rules to ban blocking judges.

A bipartisan group of senators defused that effort, reaching an agreement that limited filibusters only to the most extreme circumstances.

That deal lasted until 2011, when Mr. Obama first nominated Ms. Halligan, prompting the GOP to filibuster her along partisan lines — and both sides reversed themselves from where they’d been just a few years before. Now Republicans who had opposed judicial filibusters during Mr. Bush’s tenure launched one of their own, and the Democrats who started the practice decried it.

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