As soon as next week, the Senate is expected to consider Caitlin Halligan’s nomination to the United States Court of Appeals for the D.C. Circuit. Halligan is a former Supreme Court clerk, a former Solicitor General of the state of New York, and is currently general counsel for one of the largest prosecutor’s offices in the country. She received the highest possible rating from the American Bar Association. And she was enthusiastically endorsed by a bipartisan group of some of the top Supreme Court advocates in the country.
Her nomination was also filibustered more than a year ago by Senate Republicans after the National Rifle Association sent them a letter complaining that she argued a position in court that the NRA disagrees with.
A lot has happened since then, however. The NRA spent the months after the Sandy Hook massacre engaged in what appears to be a very skillfully crafted campaign to eradicate its own credibility. The NRA went silent for a week after this tragedy occurred, only to send their CEO Wayne LaPierre forth from his bunker to claim that “the only thing that stops a bad guy with a gun is a good guy with a gun.” More recently, LaPierre published an op-ed warning that a breakdown of civilization is coming, but you may not be around to see it because Latino gangs are also out to get you, and so is al-Qaeda, and the only way to save yourself is to buy a gun. The NRA’s opposition to universal background checks is less popular than communism, polygamy or human cloning. There are literally more Americans that believe they have personally seen a UFO than agree with the NRA’s stance on background checks.
And yet the highest ranking minority member of the Senate Judiciary Committee still believes he should follow the NRA’s lead on judges. Earlier this week, Sen. Chuck Grassley (R-IA) announced he would rekindle the filibuster against Halligan when she comes to the Senate floor because “she’s got gun problems.” Grassley previously cited the NRA’s opposition to Halligan in a statement explaining why he was filibustering her.
In case there is any doubt, the NRA’s case against Halligan is exceptionally weak. As Solicitor General of New York, Halligan’s job was to advocate on behalf of the state’s legal positions whether she agreed with them or not. New York took a position that departs from the NRA’s maximalist views on guns, and Halligan did her job by arguing her client’s position in court.
Simply put, a government attorney’s arguments on behalf of the government they represent says virtually nothing about how they actually view a particular legal issue. President George W. Bush’s first Solicitor General, Ted Olson, successfully defended campaign finance reform while he was in the Justice Department, only to convince five justices to destroy most of our campaign finance regime when he argued Citizens United. Bush’s second Solicitor General, Paul Clement, argued and won one of the strongest cases establishing that the Affordable Care Act is unconstitutional when he was in the government, and then spent more than a year undermining his victory once he was hired to claim that health reform is unconstitutional. So attacking Halligan for her gun arguments is a bit like attacking conservative movement’s top lawyer for being too friendly to Obamacare.
Ultimately, however, it shouldn’t be surprising that the NRA’s case against Halligan doesn’t hold water — this is, after all, an organization that believes we must arm ourselves to defend against scary Latinos and the collapse of civil society. Nevertheless, it is unfortunate that Grassley appears willing to give a group that holds these views a veto power over judges.