- The Washington Times - Wednesday, March 6, 2013

Senate Republicans on Wednesday delivered another blow to President Obama’s ability to fill high-level federal judicial openings, using a filibuster to block Caitlin Halligan’s nomination for a seat on the influential D.C. Circuit Court of Appeals.

While a majority of senators voted to end the filibuster, the 51-41 tally — mostly along party lines — was shy of the 60 votes needed in the 100-member chamber to end debate and proceed toward a final vote on her nomination.

Republicans have been blocking Ms. Halligan’s nomination for two years, calling her an activist on gun control, abortion rights and immigrant issues. Democrats counter that she would be an impartial jurist and 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.

President Obama said he was “deeply disappointed” by the outcome.

Sen. Chuck Grassley of Iowa, the top Republican on the Senate Judiciary Committee, said he was troubled by Ms. Halligan’s “liberal and legally untenable positions.”

“I simply do not believe she will be able to put aside her long record of liberal advocacy and be a fair and impartial jurist,” Mr. Grassley said.

Senate Minority Leader Mitch McConnell, Kentucky Republican, who orchestrated the filibuster, criticized Ms. Halligan’s positions on gun rights, saying that while serving as New York’s solicitor general she “advanced the dubious legal theory” that gun manufacturers are liable for criminal acts committed by those who misuse their products.

But Senate Judiciary Committee Chairman Patrick J. Leahy, Vermont Democrat, called Ms. Halligan a “brilliant lawyer who knows the difference between the roles of legal advocate and judge.”

“It is disappointing that narrow, special-interest groups seek to misrepresent her as a partisan or ideological crusader,” said Mr. Leahy, who added it’s unwise not to quickly fill the judicial seat given the court’s high number of vacancies and expanding caseload.

Senate Republicans in 2011 also used a filibuster to block Ms. Halligan’s nomination to the D.C. appeals court.

Four of the D.C. appeals court’s 11 seats are vacant. The court is considered second only to the Supreme Court in level of importance because it handles challenges to most federal rulemaking and oversees federal agencies based in Washington.

The appeals court historically is a training ground for future Supreme Court justices, as four of the high court’s nine members once served on the D.C. court.

Since Mr. Obama took office in early 2009, only 28 of his 219 judicial nominees have been confirmed, says the Senate Judiciary Committee’s Democratic office, prompting the president to complain the Halligan vote “continues the Republican pattern of obstruction.”

Legal experts say the vacancies are causing significant problems for the courts.

“Think of a military operating with 65 percent of its capacity,” said Carl Tobias, a law professor at the University of Richmond in Virginia. “There is a mentality that the judiciary is another federal agency. Well, no it’s not. It’s a third branch of government, and they need the respect that’s due them.”

Sen. Lisa Murkowski of Alaska was the lone Republican to support Ms. Halligan. While no Democrat opposed her, Senate Majority Leader Harry Reid, Nevada Democrat, switched his vote to side with Republicans near the end of the roll call in a parliamentary tactic that allows him to bring up her nomination in the future.

Dave Boyer contributed to this report.

• Sean Lengell can be reached at slengell@washingtontimes.com.

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