Will The Senate GOP Continue Its War On Excellence Tomorrow?

DC Circuit Nominee Caitlan Halligan

Tomorrow, the Senate will attempt to break a conservative filibuster on Caitlin Halligan, President Obama’s nominee to a seat on the United States Court of Appeals for the District of Columbia Circuit that has been vacant for more than six years. By all objective measures, this should be an easy vote. Halligan is a former Supreme Court clerk. She is a top appellate litigator who once served as solicitor general of New York, and she received the highest possible rating from the American Bar Association.

Nor is Halligan a particularly ideological nominee. Remember Miguel Estrada, the ultraconservative attorney whose own nomination to the D.C. Circuit was rejected during the Bush Administration? Senate Republicans routinely pretend that Estrada’s failure to be confirmed is one of the greatest injustices of the last 10 years, yet Estrada himself signed a letter praising Halligan as a model of judicial fairness:

We write in enthusiastic support of the nomination of Caitlin Halligan to be a judge on the United States Court of Appeals for the District of Columbia Circuit. We are lawyers who have worked with Caitlin in various capacities. We believe that Caitlin is an outstanding selection for the D.C. Circuit. She is a first-rate lawyer and advocate. She is well respected and highly regarded as a leader of the profession. Caitlin also has an ideal judicial temperament. She brings reason, insight and judgment to all matters. Even those of us who have been on opposite sides of Caitlin in litigation have been greatly impressed with her ability and character. We have no doubt that she would serve with distinction and fairness.

So if Halligan’s nomination receives a fair hearing tomorrow, there’s no reason to doubt that the filibuster against her will be easily broken and even less reason to think that she will not be confirmed by a wide margin. But, of course, in the era of Mitch McConnell, the mere fact that a nominee is both outstandingly qualified and widely praised for fairness is no reason to stand in the way of a good filibuster.

Many Senate Republicans have grasped for straws justifying their decision to oppose Halligan — but even this has proved a difficult task for her opponents. Most of the incredibly thin arguments they raise against Halligan boil down to the claim that, because she once argued for a positions like gun control or diversity in education when she was New York’s solicitor general, she must be a hardcore supporter of affirmative action and a militant opponent of the Second Amendment.

But, of course, this is pure nonsense. A solicitor general’s job is to defend the government’s position on an issue regardless of whether or not they personally agree with it. George W. Bush’s first SG, Ted Olson, defended campaign finance reform while he was in the Justice Department, only to convince the Supreme Court to destroy meaningful limits on corporations buying elections after he left the government. Bush’s second SG, Paul Clement, argued and won a case that conclusively established that the Affordable Care Act is constitutional while he was in the government. Now, of course, he’s been hired by the Republican state officials who are trying to convince the Supreme Court that Clement’s previous victory never happened.

Simply put, there is no argument against confirming Caitlin Halligan — beyond a purely partisan desire to keep excellent Obama-nominated judges off the courts entirely, that is. If the Senate does it’s constitutional duty to fairly evaluate judicial nominees tomorrow, there is no doubt that Halligan will be confirmed.