Withdrawal of Halligan Nomination Shines Spotlight on GOP Obstruction

— by Layne Amerikaner & Miranda Blue, PFAW, media@pfaw.org, (202) 467-4999

In response to the reported withdrawal of DC Circuit Court of Appeals Nominee Caitlin Halligan, People For the American Way issued the following statement.

“Caitlin Halligan’s decision to withdraw her nomination is an indictment of the continued intransigence of Senate Republicans,” said Marge Baker, Executive Vice President at People For the American Way. “There’s no question that Halligan was totally qualified for the position. Anyone who wants to understand how Washington is broken can look at the filibuster led by Senators Chuck Grassley and Mitch McConnell. Not a single Senator raised concerns about Halligan’s qualifications or her character, yet Republicans wouldn’t even allow her an up-or-down vote. This is partisanship run amok.”

Halligan, who was first nominated to the DC Circuit in May of 2010, was repeatedly blocked by Republicans—including Senators Collins, McCain and Graham, members of the so-called Gang of 14 who previously spoke out against filibustering in anything but “extraordinary circumstances.”

“There’s an obvious reason why Republicans have been so committed to blocking President Obama’s nominees to this court,” said Baker. “Republican Presidents have been hugely successful in packing the DC Circuit with extraordinarily conservative judges, and they don’t want any more jurists on the bench to dilute that ideological power. The DC Circuit has dealt significant blows to working people, environmentalists, public health activists and ordinary investors. Republicans pushing a reactionary ideology are working overtime to protect the power of the DC circuit to advance their political agenda. Senators should put the best interests of the country above partisanship and bring this obstruction to a halt.”

People For the American Way recently released a report, America’s Progress At Risk: Restoring the Balance to the DC Circuit Court of Appeals, laying out the impact of the right-wing majority on the nation’s second highest court.

Bush’s Court: How the DC Circuit Threatens the Future of Progressive Reform (Updated)

— by Layne Amerikaner & Miranda Blue, PFAW, media@pfaw.org, (202) 467-4999

WASHINGTON – Four years into President Obama’s presidency, he has yet to  have a single judge confirmed to the hugely influential Court of Appeals for the D.C. Circuit. This lapse, caused initially by a slow start from the administration but perpetuated by a blockade of obstruction in the Senate, threatens to hinder progressive advances for years to come, argues a newreport from People For the American Way.


“The D.C. Circuit is the most important court most Americans have never heard of,” said Marge Baker, Executive Vice President of People For the American Way. “The D.C. Circuit’s judges have the final word on scores of federal laws each year, from air pollution controls to financial regulations to workers’ rights. Republicans have long understood this, and have packed the court with far-right ideologues who threaten to hold back American progress for decades to come.  And they have so far blocked confirmation of judges who would bring any balance to this court.”

President Obama is the first president since Woodrow Wilson to fail to have a single nominee confirmed to the D.C. Circuit during his first full term in office, despite the fact that four of the eleven seats on the court are now vacant. His first nominee to the court, the indisputably qualified Caitlin Halligan, was twice blocked by Senate Republicans for reasons widely recognized as spurious.


As a result, the D.C. Circuit continues to be dominated by judges pushing a right-wing ideology long rejected by the American people. The right-wing majority of the D.C. Circuit has continuously sought to dismantle progressive efforts to defend consumers, protect public health, and ensure the rights of workers. Recent D.C. Circuit decisions highlighted in the report include:

  • Noel Canning v. NLRB:  In January, the D.C. Circuit invalidated three presidential appointments to the National Labor Relations Board, undermining the Board’s ability to protect the rights of workers and giving the green light to Senate Republicans who wish to decimate any federal agency by blocking appointees.
  • EME Homer City Generation v. EPA: In 2012, the D.C. Circuit sided with utility companies to strike down EPA air pollution regulations that would have prevented an estimated 34,000 premature deaths and saved $280 billion a year in healthcare costs.
  • Business Roundtable v. SEC: In 2011, the D.C. Circuit overturned an SEC rule requiring greater accountability from corporations to their shareholders in selecting board members. One observer noted that in doing so the judges – none of them securities experts – had “waded into a political fight under the guise of dispassionate scientific oversight.”
  • RJ Reynolds Tobacco v. FDA: Last year, the D.C. Circuit ruled that FDA regulations requiring cigarette manufacturers to place graphic, factually accurate warnings on their product violated tobacco companies’ First Amendment free speech rights.
  • Hein Hettinga v. USA: George W. Bush nominee Janice Rogers Brown used a case about milk market regulation last year to issue a call to arms against eight decades of progressive reforms. Courts that have allowed the government to implement reasonable regulations of industry have, she said, put “property…at the mercy of pillagers.”
  • “President Obama has a chance in his second term to restore ideological balance to the D.C. Circuit,” added Marge Baker. “It is critically important that he do so.

Otherwise, D.C. Circuit will continue to stand in the way of progressive reforms — reforms chosen by American voters — and threaten to roll back decades of hard-won protections for working people and consumers.”

On a side note, I called Senator Dean Heller’s office and asked for a specific answer as exactly why he voted in favor of filibustering the confirmation of Caitlin Halligan.  Once again, I got a blow-off standard “well as you know” non-specific answer (Click on the graphic at the left to read the response).  I made a second call complaining that I had asked a specific question and expected to receive a specific response.  Ten-to-one, I get another ‘doesn’t say crap’ letter or nothing at all.

March 22, 2013: The White House officially withdrew President Barack Obama’s nomination of Caitlin Halligan to serve on the D.C. Circuit Court of Appeals.  In a statement, Obama said he was “deeply disappointed” that a minority of senators had blocked Halligan’s nomination for almost two and a half years, and called the vacancies on what is arguably the country’s second-highest federal court “unacceptable.”

“Today, I accepted Caitlin Halligan’s request to withdraw as a nominee for the U.S. Court of Appeals for the District of Columbia Circuit,” Obama said in an emailed statement. “This unjustified filibuster obstructed the majority of Senators from expressing their support. I am confident that with Caitlin’s impressive qualifications and reputation, she would have served with distinction.”

The Critically Important DC Circuit Court

— New Report available from People for the American Way

Despite progressive victories in 2012, the far right’s out-sized influence on the United States Court of Appeals for the District of Columbia Circuit gives them the power to undermine progressive laws and thwart the agenda that Americans elected President Obama to pursue.

The DC Circuit is dominated by right wing ideologues who are deeply hostile to the use of a robust federal government to tackle national problems and make our lives better. Senate Republicans blocked President Obama’s efforts to get even one judge onto the DC Circuit during his first term. Too much is at stake for us to allow that to happen again.

The DC Circuit Is Unique. Congress requires the DC Circuit to be the immediate and exclusive court to consider appeals of a breathtaking array of agency regulations and decisions affecting the entire country. Moreover, even when parties appealing agency decisions, congressional statutes, or presidential actions have a choice of venues, they often choose to have their cases heard by the DC Circuit, sometimes due to its expertise in complex administrative matters and sometimes to take advantage of the court’s ideological imbalance.

While the Supreme Court is better known, it only hears a miniscule proportion of appeals that are filed with it. So when the DC Circuit makes a ruling, it is almost guaranteed to be the last word.

Consequences of Far Right Domination of the DC Circuit. Unfortunately, the far right has gotten exactly what they wanted from their successful efforts to stack the DC Circuit with ideologues during the Bush Administration. It can now be counted on to make disastrous rulings, especially ones favoring the powerful and limiting the role government can play to address national problems. A sampling of those decisions:

Workers’ Rights: The DC Circuit in January issued a ruling on recess appointments –Noel Canning v. NLRB – that undermined every action the Board has taken for over a year and threatened to prevent it from functioning at all going forward. The ruling was an unprecedented gift to Senate Republicans, who, if the ruling stands, can now wield the filibuster to keep NLRB vacancies open indefinitely and keep it from functioning at all – or at least until a Republican president is the one making nominations.

Environmental Protection: Last summer, in the much-criticized EME Homer City Generation case, the court struck down important new EPA rules on air pollution that crosses state lines. Based on the administrative record and its expertise on environmental health, the agency had concluded that the rules would prevent 34,000 premature deaths, 15,000 heart attacks, and 400,000 cases of asthma. They would also save $280 billion a year in healthcare. But the conservative DC Circuit rejected the conclusions of experienced experts at the EPA and threw the rules out.

Consumer Health and Safety: Last summer, the DC Circuit struck down FDA rules requiring graphic warning images on cigarette packages. In addition to text warnings, cigarette packages would also have pictures depicting the factual, negative health consequences of smoking cigarettes. In other words, consumers would see the results of using this particular product in the manner intended by the manufacturer. In an opinion written by one of George W. Bush’s most notorious nominees, Janice Rogers Brown, the DC Circuit concluded these warnings violate the tobacco companies’ First Amendment rights.

Protecting Main Street From Wall Street Abuse: In 2010, the SEC adopted rules aimed at increasing corporate accountability by requiring companies to include qualifying shareholders’ nominees in the proxy material, not just the slate preferred by management. The SEC, acting with Congressional authority under the Dodd Frank law, based its rules on a voluminous record and an exhaustive cost-benefit analysis. But in 2011, the DC Circuit struck down the SEC’s rule, claiming that the SEC had not engaged in an adequate cost-benefit analysis.

Another gift to financial giants came in the Noel Canning case discussed above, the reasoning of which would also apply to Richard Cordray’s recess appointment to the Consumer Financial Protection Bureau. Under the law creating the Bureau, it cannot do many of its most important tasks without a director. So Republicans filibustered Cordray, acknowledging that their objection was not to him but to the strong Board whose creation they had failed to torpedo. The DC Circuit’s ruling lets Senate Republicans use obstruction rather than legislation to gut the work of an important consumer protection agency.

What’s Next? Since Obama became president, two DC Circuit judges have taken senior status, leaving the court with four of its eleven seats vacant. While that leaves the Court with four Republican-appointed active judges compared to three appointed by Democrats, when senior judges (ones with reduced caseloads who continue to participate on three-judge panels) are included, the court’s imbalance grows to 9 Republican-appointed compared to four appointed by Democrats. Filling the court’s four vacancies, which is essential, provides an important opportunity to restore balance to the court.

In 2011, Senate Republicans – determined to keep Obama from restoring the court’s balance – filibustered the indisputably qualified Caitlin Halligan. Her nomination was re-submitted and she has been re-approved by the Senate Judiciary Committee. It will take a concerted effort by fair-minded Americans to overcome the continuing efforts to block this exemplary nominee.

President Obama has also renominated Principal Deputy Solicitor General Sri Srinivasan. In both cases, the Senate must be allowed to hold timely confirmation votes on these two nominees.

Even after these two nominees are confirmed, there will still be two vacancies left to fill on the nation’s second most important court. It is important for the president to nominate for these two slots strong nominees, from diverse professional backgrounds, who understand the impact of the law and the Constitution on everyday Americans.

Every facet of our lives is affected by some aspect of federal law: Whether its clean air rules, gun safety, telecom regulations, investor protection rules, securities fraud laws, labor law, banking regulations, food safety requirements, credit card regulations, election law … All these can be appealed to the courts, and that court is often the DC Circuit. So for those seeking to block a progressive federal government agenda, the DC Circuit is an important vehicle.

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