- 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.

After winning re-election Mr. Obama again nominated Ms. Halligan, reigniting the fight.

“If my Republican colleagues don’t like this woman for whatever reason, vote against her. Don’t stop her from having an up-or-down vote,” said Senate Majority Leader Harry Reid, Nevada Democrat, told colleagues on the chamber floor Tuesday.

Conservatives object to Ms. Halligan’s role in urging courts to crack down on pro-life demonstrators at abortion clinics while she was New York’s solicitor general, and her efforts to sue gun manufacturers. Sen. Jeff Sessions, Alabama Republican, also said Monday that Ms. Halligan has “troubling” views on the war on terror and the detention of enemy combatants.

Mr. Sessions noted that she endorsed a 2004 report that said the indefinite detention of enemy combatants by the U.S. is not authorized by law. He said that view is contrary to a Supreme Court ruling and Obama administration policy.

“This is alarming not only because the arguments she has advanced in this regard are contrary to well-settled law, but because the court she seeks to join, the D.C. Circuit, has a critical role in national security matters, including deciding habeas petitions of terrorist detainees,” Mr. Sessions said.

The Leadership Conference on Civil and Human Rights, a Washington-based liberal advocacy group, said Ms. Halligan is being attacked unfairly for “zealously representing the position of her client.”

“Throughout her career, Ms. Halligan has distinguished herself through her exceptional abilities and her respect for the rule of law, and she will be an impartial, thoughtful, and highly-respected addition to the court,” the group wrote Monday in a letter to senators.

Ms. Halligan’s nomination was voted out of the Judiciary Committee by a 10-7 vote on Feb. 14.

On Tuesday, White House press secretary Jay Carney called on the Senate to approve Ms. Halligan’s nomination, saying she is “well-qualified” and has bipartisan support from lawyers and law enforcement.

“The court has never been this understaffed in its history, and the caseload has increased almost 15 percent since 2011,” Mr. Carney said.

Due in large part to Republican opposition to Mr. Obama’s nominees, there are 89 judicial vacancies nationwide, more than double the number that existed at the same point of George W. Bush’s presidency. Senate Judiciary Chairman Patrick J. Leahy, Vermont Democrat, said Senate Republicans have obstructed judicial nominations “from the moment President Obama took office.”

But even liberal advocacy groups were critical of Mr. Obama during his first term for a slow pace of nominations, contributing to fewer confirmations than his predecessors in their first terms. There were 55 judicial vacancies when Mr. Obama became president in January 2009.

The White House on Tuesday released an infographic on whitehouse.gov claiming that 78 percent of Mr. Obama’s circuit judge nominations have waited more than 100 days for a vote, compared to 15 percent of President Bush’s nominees.

Mr. Carney highlighted the information on a powerpoint slide during his Tuesday briefing with reporters. A second slide claimed that Mr. Obama’s district court nominees have faced similar delays with 42 percent having waited more than 100 days for a vote, compared to 8 percent of Bush’s nominees.

Susan Crabtree contributed to this report

• Dave Boyer can be reached at dboyer@washingtontimes.com.

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