Halligan’s withdrawal is the latest example of how the GOP has employed the filibuster rule not only to block major legislation, but routine presidential appointments as well.
The D.C. Circuit decides significant challenges to federal regulations, including those on environmental protection and worker’s rights. Obama is the first president who has been unable to put a single judge on the court.
The Constitution says judges are to be nominated by the president and confirmed by a majority vote in the Senate. Halligan had the support of the Senate’s Democratic majority, but minority Republicans blocked a vote to confirm her. Under the Senate’s rules, it takes 60 votes to close debate and set a final vote.
Obama issued a statement saying he was “deeply disappointed that…a minority of senators continued to block a simple up-or-down vote on her nomination. The D.C. Circuit is considered the nation’s second- highest court, but it now has more vacancies than any other circuit court. This is unacceptable.”
Halligan, 46, is a graduate of Princeton and Georgetown Law School and clerked at the Supreme Court for Justice Stephen Breyer. She served as New York’s solicitor general from 2001 to 2007, and her office pursued a state lawsuit against gun manufacturers for causing a public nuisance. She also supported a New York Bar Assn. report that was highly critical of the indefinite detention of prisoners at Guantanamo Bay.
The National Rifle Assn. opposed her nomination, and Republican senators cited the gun case as a reason for opposing her. Two years ago, 54 senators voted for her, but it was not enough to win her confirmation.
Earlier this month, Republicans stood firm in blocking her.
“Ms. Halligan has demonstrated an activist judicial philosophy,” said Sen. John Barrasso (R-Wyo), chairman of the Senate Republican Policy Committee. “Her persistent activism against gun manufacturers” and her willingness to “use the courts to promote liberal ambitions” are grounds for blocking her confirmation, he said.
Liberal groups have been upset by the success of the GOP filibuster strategy. “The D.C. Circuit is far too important to be held hostage by Senate obstructionists,” said Caroline Frederickson, president of the American Constitution Society.
“Senate Democrats need to revisit the Senate rules reform and stand up to the tyranny of the minority,” said Nan Aron, president of the Alliance for Justice.
In January, the D.C. Circuit Court dealt Obama another blow when it ruled unconstitutional his decision to fill two seats on the National Labor Relations Board through a “recess” appointment. The three judges, all Republican appointees, said the president needs to win Senate confirmation of those appointees.
Halligan was first nominated in 2010 to fill a seat on the D.C. Circuit that has been vacant since 2005 when then-Judge John Roberts became the chief justice of the United States.
President George W. Bush has two of his D.C. Circuit nominees blocked by Democratic filibusters, but he also succeeded in winning confirmation for four appointees to the appeals court.
Obama has one other nominee pending for the D.C. Circuit. He is Sri Srinivasin, who is the deputy U.S. solicitor general. He will be arguing before the Supreme Court in one of two gay-marriage cases scheduled for hearings next week.