WASHINGTON—Senator Mike Lee (R-UT) delivered a Senate floor speech in opposition of DC Circuit nominee Caitlin Halligan, citing the lack of need for an additional judge in the Court, and concerns with Halligan's views in previous cases. The full text of the speech is available below and in the video above.


I rise today to speak in opposition to the nomination of Caitlin Halligan to be a Circuit Judge on the U.S. Court of Appeals for the District of Columbia Circuit.

The D.C. Circuit is arguably the most important federal appellate court in our country’s judicial system, with primary responsibility to review administrative decisions made by many federal departments and agencies.  It has also served in several instances as a stepping-stone for judges who are later appointed to the Supreme Court.

As a result, the Senate has a longstanding practice of scrutinizing nominees to the D.C. Circuit.  And when evaluating particular nominees we have also carefully considered the need for additional judges on that court.

In July 2006, President Bush nominated an eminently qualified individual, Peter Keisler, to fill a seat on the D.C. Circuit.  Mr. Keisler is among the very finest attorneys in the country.  Because of his non-ideological approach to the law, Mr. Keisler enjoys broad, bipartisan support throughout the legal profession.   

Despite these unassailable qualifications, Democratic senators blocked Mr. Keisler’s nomination.  He did not receive any floor consideration whatsoever—not even a cloture vote—and his nomination languished in the Judiciary Committee.  

At the time, a number of Democratic senators sent a letter to the Judiciary Committee Chairman arguing that a nominee to the D.C. Circuit, “should under no circumstances be considered – much less confirmed – before we first address the very need for that judgeship.”  These senators specifically argued that the D.C. Circuit’s comparatively modest caseload in 2006 did not justify the confirmation of an additional judge to that court.

More than six years have passed and Ms. Halligan has been nominated, once again, to that very same seat on the D.C. Circuit.  But the court’s caseload remains just as minimal as it was then. 

• According to the Administrative Office of U.S. Courts, the D.C. Circuit’s caseload is so light that the number of appeals pending per judicial panel is 54 percent less than the average for federal courts of appeals.
• With just 359 pending appeals per panel, the D.C. Circuit’s average workload is less than half that of other similar appellate courts.
• The D.C. Circuit’s caseload has actually decreased since the time that Democrats blocked Mr. Keisler.  Since 2005:
• The total number of appeals filed is down over 13 percent; and
• The total number of appeals pending is down over 10 percent.
• Some have sought to make much of the fact that since 2005, two of the court’s judges have taken senior status, leaving only seven active judges on the D.C. Circuit.
• But the court’s caseload has declined so much in recent years that even filings per active judge are only slightly higher than they were in 2005.
• Of course, this doesn’t account for the six senior judges on the D.C. Circuit who continue to hear appeals and author opinions.
• Their contributions are such that the actual work for each active judge has declined and the caseload burden for D.C. Circuit judges is less than it was when Democrats blocked Mr. Keisler on the basis of declining caseload. 
• Indeed, the average filings per panel – perhaps the truest measure of actual workload per judge – is down almost 6 percent since that time.
• In each of the last several years, the D.C. Circuit has cancelled regularly scheduled argument dates due to the lack of pending cases.  And those who work at the court suggest that in reality the workload isn’t any different today than it has been in the past.

According to the Democrats’ own standards – and particularly when there are judicial emergencies in other courts across the country – now is not the time to confirm another judge to the D.C. Circuit.  And it is certainly not the time for us to consider confirming a controversial nominee with a record of extreme views of the law and Constitution.  

Make no mistake, Ms. Halligan is anything but a consensus nominee.  The Senate has already considered and rejected her nomination.  Nothing material has changed since that time.

Many of my colleagues have discussed a wide range of Ms. Halligan’s views, so I will limit myself today to just one example.  In 2003, while serving as Solicitor General of New York, Ms. Halligan approved and signed a legal brief arguing that handgun manufacturers, wholesalers, and retailers should be held liable for criminal actions that individuals commit with the guns.  Three years later in 2006, Ms. Halligan filed another brief arguing that handgun manufacturers were guilty of creating a public nuisance.

Such arguments amount to an invitation for courts to engage in sweeping judicial activism; and the positions she took are both bewildering and flatly inconsistent with the original understanding of the Second Amendment rights that all Americans enjoy.

In conclusion, as measured by the Democrats’ own standards and their own prior actions, now is not the time to confirm another judge to the D.C. Circuit.  And it is certainly not the time to consider such a controversial nominee for that important court.  The Senate has already spoken and rejected Ms. Halligan’s nomination.  I urge my colleagues once again to oppose her confirmation.