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JAG Letter To Senators Re: Caitlin Halligan

March 24, 2011 

The Honorable [Senator}
United States Senate
Washington, DC 20510

       Re: Opposition to the Confirmation of Caitlin Halligan for the District of Columbia Circuit Court of Appeals


Dear Senator [LAST NAME]:

 On the question of the confirmation of Caitlin Joan Halligan to the United States Court of Appeals for the District of Columbia Circuit, we respectfully ask that you vote “nay.”

 The D.C. Circuit is considered by many as second only to the United States Supreme Court for the role it plays in addressing significant constitutional challenges to federal statutes and regulations.  In light of this important role, nominees to the D.C. Circuit have traditionally been subjected to a thorough and rigorous review.  Ms. Halligan should be granted no exception from this customarily increased scrutiny.  Moreover, Ms. Halligan’s record and statements to the Senate Judiciary Committee have fallen short of the heightened scrutiny they deserve.

 Some argue that judicial emergencies exist in a number of Federal district and circuit courts where empty seats may lead to increased caseloads for some judges.  While there is some dispute as to whether such judicial emergencies exist, there is no dispute that the D.C. Circuit is without such emergencies.  Calculations according to caseload statistics available on the United States Courts website show the D.C. Circuit’s number of cases per judge is less than one half of the circuit with the next lowest figure (the Tenth Circuit), and barely one fourth of the average among the remaining circuits.[1]  The President and the Senate should first focus on appointing and confirming good judges to courts that are the most in need rather than prioritizing circuits, like the D.C. Circuit, that are not in need.

 In comparison to the recent history of D.C. Circuit nominees, the judiciary committee has rushed through their review of Ms. Halligan[2] – essentially abdicating to each individual Senator the responsibility to thoroughly examine both her record and her statements before the committee.  Recent nominees to the D.C. Circuit including Miguel Estrada, John Roberts, Tom Griffith, Brett Kavanaugh, Peter Keisler, and Janice Rogers Brown[3] were subject to exhaustive review by the judiciary committee and extensive tactics to further draw out their confirmation process.  Clear precedent exists for thorough vetting of D.C. Circuit nominees.  Ms. Halligan’s record should be held to that same standard.

 A thorough examination of Ms. Halligan’s record clearly demonstrates she does not meet the standard appropriate for that of a judge to the United States Court of Appeals for the D.C. Circuit.  Her appellate briefs in multiple cases on a variety of issues repeatedly petition courts to change public policy and law through activist decisions.  Take for example the amicus curaie brief that Ms. Halligan filed in the Supreme Court case Roper v. Simmons, 543 U.S. 551 (2005).  In Roper, the Supreme Court addressed the issue of whether the execution of “juvenile offenders” (murders who were age 16 or 17 at the time of their crime) violated the Eighth Amendment bar on cruel and unusual punishment.

 At the time of adoption of the Eighth Amendment capital punishment was not “cruel and unusual.”  The Eighth Amendment has not been amended and its meaning has not been changed by legislators.  Nevertheless, Halligan argued that judges should take it upon themselves to legislate from the bench that: “[an] enduring legislative consensus has emerged against executing juvenile offenders.”  Her suggestion that courts should determine an emerging consensus among multiple states instead of simply applying the clear law of the state in question constitutes an express invitation for courts to legislate from the bench.  An invitation that the court, unfortunately, accepted.  Contrary to Halligan’s view, the Constitution grants no authority to judges to impose an altered meaning of the constitution on all fifty states based on what several believe the law for criminal punishment should be in their particular state.  Halligan’s view leads courts to subvert the first and foremost provision of our Constitution (Article I, Section 1) which provides that all legislative power is reserved to the elected representatives of the people, not to Article III judicial officers.

 Whether Ms. Halligan possesses the proper judicial temperament and judgment is also called into question by her conduct in response to controversy that has arisen over the content of a 2004 New York City Bar Association report titled “The Indefinite Detention of ‘Enemy Combatants:’ Balancing Due Process and National Security in the Context of the War on Terror,” on which Halligan was a signatory.[4]  Halligan lists this report in her committee questionnaire and claims: “I do not recall personally contributing or participating in these reports other than as a member of the Committee approving them.”[5]  The report reaches some absurdly unconstitutional conclusions and, accordingly, Senators on the Judiciary Committee challenged Halligan on her participation in the report.  In response, Halligan claimed she only recently learned of the report’s existence and attempted to disown the report by stating that its conclusions were “incorrect” and unrepresentative of her own opinion.  However, a simple review of the document reveals that four members of the committee clearly indicated in their signature that they abstained from approval of the report.  Halligan is not among those four, a fact clearly indicative of the conclusion that she approved the report at the time and only now abandons its position in light of the recent controversy.

 For these reasons – and for those reasons raised by others concerning Ms. Halligan’s dangerously political opposition to laws protecting law-abiding gun owners and manufacturers and to laws protecting traditional marriage[6] – we respectfully recommend that you vote “nay” on the question of her confirmation.  The D.C. Circuit has no pressing need for another judge, and it certainly does not need a judge who has a demonstrable record of asking the courts to legislate from the bench.



Phillip L. Jauregui


[1]Available at: http://www.nationalreview.com/bench-memos/258719/why-push-halligan-ed-whelan, and  http://www.weeklystandard.com/blogs/dont-short-dc-circuit.

[2] Referring in particular to Former Attorney General Peter Keisler who waited more than two and half (2½) years for a committee vote.  See, http://grassley.senate.gov/news/Article.cfm?customel_dataPageID_1502=31511.

[3] Id.

[4] The full report is available at: http://www.abcny.org/pdf/1C_WL06!.pdf

[5] Response to question 12(b) Senate Judiciary Committee Questionnaire (updated).

[6] In a written informal opinion, Halligan stated in March 2004: “Although the DRL [Domestic Relations Law] does not explicitly prohibit same-sex marriages, it is our view that the Legislature did not intend to authorize same-sex marriage.  The exclusion of same-sex couples from eligibility for marriage, however, presents serious constitutional concerns…”  Available at:http://www.ag.ny.gov/bureaus/appeals_opinions/opinions/2004/informal/2004_1.pdf.