The ‘Halligan Rule,’ Or Why The GOP’s Top Lawyer Can Never Be A Judge

With the Supreme Court’s decision to consider Arizona’s unconstitutional anti-immigrant law SB 1070 yesterday, GOP megalawyer Paul Clement emerged as one of the most significant advocates in any recent Supreme Court term. Clement is now lead counsel in the Arizona immigration case, in the Texas GOP’s redistricting challenge, and, of course, in the Affordable Care Act litigation. He is also charging the American taxpayer $520 an hour to defend anti-gay discrimination in lower federal courts — although this case has yet to reach the justices. If a high-ranking Republican somewhere in the country wants to screw up the Constitution, they’ve probably hired Paul Clement to help him do it.

Given Clement’s singular role as the Republican Party’s top litigator, it’s likely that he will be nominated to the federal bench if a Republican wins the White House while Clement is still young enough to be a viable nominee. Moreover, as a former United States Solicitor General and former law clerk to Justice Scalia, Clement certainly possesses the kind of resume that generally attracts a president’s attention. There’s only one problem — the Senate GOP just disqualified him.

Last week, the Senate GOP voted almost unanimously to filibuster Caitlin Halligan’s nomination to the United States Court of Appeals for the D.C. Circuit. And, while the GOP’s case against Halligan is disturbingly thin, Senate Republicans were clear about one thing — they blocked her because she argued controversial cases when she served as New York’s solicitor general. Senate Minority Leader Mitch McConnell accused her of advancing a “dubious legal theory” because she once argued a position that the NRA disagreed with. The Senate Judiciary Committee’s top Republican, Sen. Chuck Grassley (R-IA), explained that he opposed her nomination because Halligan “su[ed] gun manufacturers for the criminal acts committed with handguns.” And Sen. Mike Lee (R-UT) ranted that arguing against the NRA’s position is “an activist approach.”

Now, let’s be clear, Halligan argued these cases because she was the Solicitor General of New York and 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. Her involvement in these guns cases says no more about her stance on the Second Amendment than the fact that Bush’s solicitor general defended campaign finance reform proves that he is didn’t want to kill meaningful limits on corporate money in politics when he later argued the Citizens United case.

But, of course, as Sen. John Cornyn (R-TX) once explained, senators “need to treat all nominees exactly the same, regardless of whether they’re nominated by a Democrat or a Republican president.” The Senate GOP has made it perfectly clear that an attorney who argues a controversial case cannot be confirmed to the federal bench — even if their decision to argue that case says nothing about their personal views of the law or the Constitution.

Should a future president nominate Paul Clement to be a judge, the Senate GOP’s own “Halligan Rule” disqualifies him from judicial service.