As mentioned in yesterday’s Daily Update the Senate is poised to once again vote on four time loser judicial nominee Caitlin Halligan. Senate Majority Leader Harry Reid (D-Never really tells the truth) tried to portray Ms. Halligan (who last times was defeated by a bipartisan majority) as a qualified candidate. The Republican Policy Committee responded:
This morning Leader Reid addressed the nomination of Caitlin Halligan to the D.C. Circuit Court of Appeals, which the Senate rejected last Congress. He insisted that rejecting this nomination again this Congress on procedural grounds would be in “very bad faith.” But Senate Republicans have procedurally defeated the President’s judicial nominees sparingly – where a demonstrable record of activism weighs against the nominee. This limited use pales in comparison to the indiscriminant blocking of judicial nominees by Senate Democrats. Consider just two recent nominees who were denied an up-or-down vote by Senate Democrats:
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- Miguel Estrada, a Honduran immigrant who grew up to become one of the nation’s top appellate lawyers and who had no hint of activism in his record, was filibustered seven times by Senate Democrats. Leader Reid and Chairman Leahy voted against cloture every time. Some might call that a record of “bad faith.”
- Peter Keisler, the previous nominee to the same seat to which Ms. Halligan has been nominated, languished 918 days without a vote in the Senate Judiciary Committee. Senate Democrats argued that Mr. Keisler’s nomination was not necessary because the D.C. Circuit was underworked at the time.
Rather than defend Ms. Halligan’s activist record, Leader Reid instead argued that the caseload of the D.C. Circuit Court is heavy enough now to warrant another judge. But this line of argument appears to be nothing more than an imaginary crisis on the D.C. Circuit to justify giving a lifetime appointment to a demonstrated judicial activist. Consider the following:
- The workload of the D.C. Circuit is less than half the national average. The D.C. Circuit, in fact, is one of the least busy circuit courts in the country.
- The D.C. Circuit is less busy now than it was before Peter Keisler was nominated, both in absolute terms and in relative terms: the number of appeals filed has decreased more than 13 percent; and the appeals filed per panel has decreased by six percent.
- And if one includes the substantial contributions of senior status judges, there are more judges now hearing cases on the D.C. Circuit than in 2005. Eight years ago, there were nine active judges and two senior judges, for a total of 11 judges hearing cases. Last year, eight active judges and five senior judges, for a total of 13, took part in the court’s work.
- In fact, last year every senior judge on the D.C. Circuit sat on panels and author opinions – accounting for 20 percent of the opinions published by the court.
- Combining both active and senior judges for the years 2005 and 2012, there is a 26 percent decrease in case filings per judge on the D.C. Circuit.
- Finally, the vacancy to which Ms. Halligan has been nominated is not a judicial emergency.
More fundamentally, however, even if the workload of the D.C. Circuit wasn’t one of the lightest in the country, that still wouldn’t be a reason to place a judicial activist on the court.