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Concerns about Caitlin Halligan, D.C.

Circuit Court of Appeals Confirmation Conversion Caitlin Halligan has a well-documented record of advocating extreme liberal positions on constitutional issues, including in cases some before the Supreme Court involving terrorism, abortion, immigration, guns, same sex marriage, the death penalty, and affirmative action. Yet, remarkably, at her hearing before the Senate Judiciary Committee, she testified that original intent was the preferred method of Constitutional interpretation, rejected staunch death penalty opponent William Brennans constitutional vision, rejected the idea that judicial doctrine should incorporate the evolving understandings of the Constitution forged through social movements, legislation, and historical practice, and rejected the notion that empathy should play a role in a judges consideration of a case. When asked in follow-up questions whether she had ever before espoused such views, she responded, I do not recall expressing an opinion on this issue in the past. This is not surprising, given her liberal, activist record and her support for the nomination of nowJustice Sonia Sotomayor. War on Terror Halligans views on the War on Terror and detention of enemy combatants are very troubling, especially given that the court she seeks to join the D.C. Circuit Court of Appeals has a crucial role in national security cases. In March 2004, she signed a report issued by the Association of the Bar of the City of New Yorks Committee on Federal Courts, titled The Indefinite Detention of Enemy Combatants: Balancing Due Process and National Security in the Context of the War on Terror. The report embodies the sort of left-wing extremism that the courts have rejected and that the Obama administration has had to retreat from. o The report maintains that the congressional Authorization for Use of Military Force (AUMF) does not authorize indefinite detention of enemy combatants. Not only has the Supreme Court held that it does in Hamdi v. Rumsfeld, but the Obama administration has argued for a broad construction of that authority, and the D.C. Circuit (the very court Halligan seeks to join), in a series of rulings joined by judges across its ideological spectrum, has adopted that broad construction.

o The report argues vigorously against the use of military commissions to try alien terrorists and maintains that the preferred fora are Article III civilian courts, where terrorists should be given the same constitutional protections afforded ordinary criminals a position even the Obama administration has abandoned. Although Halligan tried to distance herself from the report, she nevertheless chose not to abstain from it, when four other members of the Committee did exactly that. According to her own testimony, she never took any action to repudiate the report or its contents before her nomination or even before her hearing. Moreover, while in private practice, she donated her legal services pro bono and coauthored an amicus brief in the 2009 case Al-Marri v. Spagone, which argued that the AUMF did not authorize the seizure and indefinite military detention, without criminal trial, of a Lawful Permanent Resident alien who allegedly conspired with Al-Qaeda to execute terror attacks on the U.S. o Al-Marri arrived in the U.S. from Qatar with his family on September 10, 2001. He enrolled in classes at an Illinois university where he previously obtained a degree. Authorities suspected he could be involved in plotting a second wave of attacks. He was arrested and charged with possession of stolen credit card numbers but investigators found that his computer contained files on U.S. chemical plants and lectures by Osama bin Laden. He had also made several phone calls to Mustafa al-Hawasawi who wired money to the 9/11 hijackers. o Al-Marri was detained as a criminal at first, then was given over to the military as an enemy combatant, and was finally transferred by the Obama administration back into the civilian criminal system in February 2009. He pleaded guilty to material support for terrorism and other related charges, through a plea deal, was sentenced to 8 years in federal prison. Death Penalty As Solicitor General of New York, Halligan filed an amicus brief on behalf of eight states in Roper v. Simmons a case in which New York was not even a party arguing that state laws permitting the execution of convicted murderers who were 16 or 17 years old at the time of the crime are unconstitutional and violate the Eighth Amendment due to evolving standards of decency. In addition, Halligan was a member of the New York State Bar Associations Special Committee on the Civil Rights Agenda when it published a 2008 report entitled Steps

Toward A More Inclusive New York and America, which recommended that the death penalty should not be reinstated in New York at this time. Second Amendment The National Rifle Association and Gun Owners of America oppose this nomination. In a 2003 speech, Halligan commented on the then-pending Protection of Lawful Commerce in Arms Act (PLCAA), which Congress passed to address nuisance lawsuits against gun manufacturers: If enacted, this legislation would nullify lawsuits brought by nearly 30 cities and counties including one filed by my office as well as scores of lawsuits brought by individual victims or groups harmed by gun violence . . . . Such an action would likely cut off at the pass any attempt by States to find solutions through the legal system or their own legislatures that might reduce gun crime or promote greater responsibility among gun dealers. She also stated that courts are the special friend of liberty. Time and time again we have seen how the dynamics of our rule of law enables enviable social progress and mobility. When asked in follow-up questions whether she believed there is a basis in the law for liability of gun manufacturers, Halligan deflected merely noting that: At the time [I gave the speech], the Attorney General [of New York Eliot Spitzer] was pursuing a common law action against a number of gun manufacturers, wholesalers, and retailers. That lawsuit was dismissed on legal grounds by a New York State intermediate appellate court. In light of the New York state courts decision, there is no basis in New York law for holding firearm manufactures liable for crimes in which a handgun is used. I am not familiar with the laws of any other state or federal law, and have no basis for an opinion regarding any such claims that might be brought in other jurisdictions. But Halligan was more than just a bystander. She filed at least two briefs in two different cases (one in state court and one in the Second Circuit that spanned eight years of litigation) and her brief in the Second Circuit certainly suggests she was familiar with the laws of other states and the federal government: o In arguing that the PLCAA violates the principles of federalism, she stated: state legislatures across the country have addressed the alleged problem of civil liability suits

brought against the gun industry. In response to this perceived problem, approximately 30 state legislatures have adopted legislation similar to the [PL]CAA, limiting in various ways the availability of civil remedies for alleged torts committed by members of the gun industry. See Elizabeth T. Crouse, Arming the Gun Industry: A Critique of Proposed Legislation Shielding the Gun Industry from Liability, 88 Minn. L. Rev. 1346, 1357-1358 (2004) (collecting statues). o She also wrote: the district court found that the [PL]CAA created a new legal standard and did not directly interfere with judicial fact finding. The district courts opinion, which Halligan cited to, specifically describes the laws of other states. Same Sex Marriage In 2004, Halligan authored an informal opinion on behalf of New York Attorney General Spitzer, concluding that New Yorks Domestic Relations Law (DRL) did not authorize same sex marriages, but invoked a theory of an evolving Constitution when she went on to raise potential constitutional concerns: The question of whether the DRL authorizes and permits same-sex marriage must be analyzed in light of an ongoing and rapidly shifting debate about whether it is constitutional to deny eligibility for marital status to same-sex couples. We believe that while the DRL does not authorize same-sex marriage, this interpretation raises constitutional concerns. Halligans opinion does not undertake to resolve definitively the serious constitutional concerns that it raises, but reveals a decided slant in favor of a constitutional right to same sex marriage. Her opinion also advises, based on a single trial court ruling that was later reversed, that New York law presumptively requires that parties to [same sex] unions must be treated as spouses for purposes of New York law. Controversial Briefs as Solicitor General of New York As New Yorks Solicitor General, Halligan was responsible for recommending to Attorney General Spitzer that the state intervene in several high profile Supreme Court cases, and filed amicus briefs that consistently took activist positions regarding the Constitution: Abortion: In Scheidler v. National Organization for Women, Halligan filed an amicus brief supporting NOWs claim that members of the Pro-Life Action League and the Oklahoma Pro-Life Action Network had engaged in extortion. The Supreme Court rejected her

position in an 8-1 opinion because the protesters did not obtain any property from the abortionists, a key element of extortion. Affirmative Action: Halligan was lead counsel on multi-state amicus briefs in Grutter v. Bollinger and Gratz v. Bollinger and in the Seattle and Louisville race-based school assignment cases, arguing that the use of race as a determining factor in secondary, college and law school admissions is not only appropriate, but constitutional. Immigration: In Hoffman Plastics Compounds, Inc. v. NLRB, Halligan filed an amicus brief on behalf of New York and several other states arguing that the NLRB should have the authority to grant back pay to illegal aliens, notwithstanding the fact that federal law prohibits illegal aliens from working in the U.S. In a 5-4 decision, the Supreme Court disagreed with Halligan, holding that the NLRB was precluded from awarding the employee back pay because the award was detrimental to federal immigration policy. Federalism/Global Warming: Halligan represented New York in Massachusetts v. Environmental Protection Agency, in which a number of states argued that the Clean Air Act both authorized and required the EPA to regulate automobile emissions and other discharges of greenhouse gases associated with climate change. In their brief, the states argued that that physical and chemical compounds associated with climate change were pollutants within the meaning of the Clean Air Act, and that the EPA was required to regulate them unless it could show some basis for concluding that they were not dangerous. Over strong dissents by Chief Justice Roberts and Justice Scalia (primarily on the standing issue), the Court ruled 5-4 that the EPA did have this authority and remanded for further agency proceedings on whether and how to regulate. Given the very real standing issues raised in this case (especially regarding causation and remediability), the decision will likely embolden states efforts in this area.

The D.C. Circuit Does Not Need Another Judge Amidst all the talk of courts that face judicial emergencies, there is no reason to push forward with the nomination of Caitlin Halligan to the underworked D.C. Circuit. For the second straight year, the D.C. Circuit canceled scheduled argument days because it does not have cases. According to the Administrative Office of the U.S. Courts (AOC), filings in the D.C. Circuit fell 17% for the most recent 12-month period measured (ending March 31, 2010), as compared to the previous 12-month period. According to AOC data, the D.C. Circuits caseload per judge is 96, whereas the aggregate figure for the other regional courts of appeals is 357 nearly four times higher. The D.C. Circuit has experienced a significant decline in actions per active judge between 2006 and 2010. Specifically, total terminations (on the merits and procedurally) have declined from a total of 216 in 2006 to 184 in 2010 (a 15% decrease in dispositions, per active judge, between those years). In terms of pending appeals (actions per panel), the D.C. Circuit has also had a decrease during this time period from 387 in 2006 to 353 in 2010 (a decrease of 9%, per panel, between those years). The D.C. Circuit ranks last among circuit courts in 2010 in this category, meaning that it has the lightest workload, per panel. It ranks about in the middle (seventh) in terms of the median time for disposition of an appeal (11.4 months). These grounds were cited in 2005 and 2006 backed by then-higher caseload statistics by the Democrats as a basis for blocking President Bushs nominee to this court, Peter Keisler, a consensus nominee who had broad bipartisan support from lawyers and colleagues across the country, including from President Obamas current nominee to head the Office of Legal Counsel, Virginia Seitz. In addition, Mr. Keisler was praised in the Justice Department Inspector Generals report on politicization at the Department, because he spoke and acted in opposition to those who allowed political considerations to play a role in hiring decisions at the Department. Rather, he focused on the candidates qualifications. Instead of being rewarded for his courage he fell victim to the very partisan wrangling he stood against. Keisler waited 918 days for a committee vote and was never confirmed.