There’s hardly a better snapshot of the modern-day conservative movement than the fight over the appointment of Caitlin Halligan. And it’s ugly. Anti-choicers joined with anti-gun reform advocates to defeat the nomination of Halligan just last week by threatening a filibuster.
President Obama originally nominated Halligan, general counsel for the Manhattan district attorney’s office and former solicitor general of New York, for a seat on the D.C. Circuit Court of Appeals. Halligan was supposed to fill the seat vacated by Chief Justice John Roberts’ Supreme Court appointment to the Supreme Court. Instead, the NRA and the anti-choice lobbies joined forces to block her.
Halligan is considered by all reasonable people to be a mainstream judicial candidate who even with the dysfunction in the Senate should have been approved. Born in Ohio, Halligan graduated with honors from Princeton, and then went on to earn a J.D. from Georgetown Law School. After graduation she landed two prestigious judicial clerkships. First for the United States Court of Appeals for the District of Columbia Circuit Judge Patricia Wald and then for Supreme Court Justice Stephen Bryer. She enjoyed broad support among members of both parties and in the legal community. Still, her nomination failed.
President Obama first nominated Halligan on September 29,2010, but the Senate refused to take up her nomination that year. Halligan was then re-nominated in January of 2011. The following month the Senate Judiciary Committee held a hearing on the nomination and voted 10 to 8 to let the nomination advance. In December of the same year, shortly before the end of the Congressional session, Senate Republicans filibustered the nomination.
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The fight was not over yet. Halligan was renominated in June of 2012 but two more attempts to gain cloture on her nomination failed, this despite the fact that a majority of Senators supported the nomination. Senate Republicans successfully blocked Halligan’s nomination again, and again President Obama renominated her. In the beginning of March, 2013 Senate Majority Leader Harry Reid again filed a motion to invoke cloture and again Republicans blocked the nomination. On March 22, 2013 Halligan requested President Obama withdraw her nomination to the court.
Opposition to her nomination came from two fronts, though one was decidedly more visible than the other. First was the National Rifle Association (NRA) which focused its ire almost completely on a single brief Halligan wrote while working with then-New York Attorney General Andrew Cuomo. Cuomo was looking for ways to make gun manufacturers legally responsible for a portion of the gun violence in New York and thus have them shoulder some of the public health costs associated with treating victims of gun violence. Naturally the NRA opposed the effort. Senate Republicans used Halligan’s work in pursuing a lawsuit against the gun-manufacturing industry to smear her as a “judicial activist” who would not “strictly interpret” the Constitution should she be confirmed and used that as one reason to block her nomination.
Opposition to Halligan’s nomination also came from the anti-choice community for her role in a 2002 case, NOW v. Scheidler, where as Solicitor General, she argued that the Racketeer Influenced and Corrupt Organizations Act (RICO) could apply to organizations like anti-choice groups who employ criminal ends to get to (mostly) non-monetary, rather than monetary goals.
The case has a long legal history that predates Halligan’s involvement, beginning in 1986 when, in the shadow of escalating violence against abortion providers, clinics, and patients, the National Organization for Women (NOW) brought a class action lawsuit on behalf of women seeking abortions and on behalf of various abortion clinics and providers seeking monetary damages and injunctions under the RICO, Hobbs, and the Travel Acts. NOW argued that the defendants, Joseph Scheidler and other members of the Pro-Life Action League, and specifically the Oklahoma Pro-Life Action Network were racketeering organizations, a functional “pro-life mafia” engaging in a conspiracy to prevent access to health care facilities providing abortion services. It was the first time the anti-choice groups had been the target of a class action lawsuit alleging they operated as a criminal gang. Needless to say, the case made waves.
The case snaked up and down the federal court circuits for years before it was eventually consolidated with another case, National Organization for Women et al. v. Operation Rescue. In the meantime the Freedom of Access to Clinic Entrances Act (FACE) went into effect, a federal law designed to prevent the exact kind of threats, coercion, and blockades that were at the heart of the lawsuit. The combined cases were argued not once, but three different times before the Supreme Court appearances, leading to a series of rulings culminating in a 2006 ruling by a unanimous Roberts court that the RICO and related criminal conspiracy statutes did not apply to acts of violence unrelated to robbery or extortion and that passage of the FACE Act suggested it was not Congress’ intent to have RICO statutes apply in situations like clinic blockades and patient/provider harassment.
One reason nominations to the D.C. Circuit get a little extra attention is because the court has jurisdiction over much of the federal government, so both parties give these nominations extra scrutiny. The D.C. Circuit is also considered a logical precursor to the Supreme Court. John Roberts, Antonin Scalia, Clarence Thomas, and Ruth Bader Ginsburg all got their start there, which is why the Halligan nomination is about more than just the Halligan nomination. It’s about the Supreme Court.
As we’ve seen in this term alone, with the affirmative action case in Fisher v. Texas, the voting rights case in Shelby Co. v. Holder, the marriage equality cases of Hollingsworth v. Perry and U.S. v. Windsor, Chief Justice Roberts has proven to be a cultural conservative first and a federalist second. And so far it has been President Obama’s appointments, Justices Elena Kagan and Sonia Sotomayor, who’ve been the most forceful voices in opposition to Justices Roberts, Antonin Scalia, and Samuel Alito. With gun control and abortion rights the two next most likely culture wars issues to come before the high court, and with the possibility of at least one if not more appointments to the Supreme Court during Obama’s second term, it’s no wonder hard right conservatives saw the Halligan nomination as such a threat. Her nomination and her confirmation put on display the common thread that joins the groups who fought so hard against her nomination—violence.