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Obama nominee for federal appeals court withdraws

By Bill Mears, CNN Supreme Court Producer
updated 1:26 PM EDT, Sat March 23, 2013
STORY HIGHLIGHTS
  • President "deeply disappointed" over withdrawal of Caitlin Halligan
  • Republican senators had filibustered her nomination to D.C. Circuit
  • Halligan would have been 'activist' on bench, opponents say

Washington (CNN) -- A top judicial nominee has withdrawn her name from consideration after a successful Republican filibuster, with President Obama saying Friday he "was deeply disappointed."

New York attorney Caitlin Halligan was one of two nominees named in January by Obama to the U.S. Court of Appeals for the District of Columbia, seen by many as a professional steppingstone to the Supreme Court.

A 51-41 cloture vote earlier this month failed to achieve the necessary 60 senators to end debate on Halligan's qualifications, with Senate Democrats complaining she was being unfairly filibustered. GOP lawmakers said she would be an "activist" on the bench.

Halligan is general counsel for the Manhattan district attorney's Office. She would fill the appeals court seat vacated by Chief Justice John Roberts, who joined the high court in 2005.

"I am deeply disappointed that even after nearly two and a half years, a minority of senators continued to block a simple up-or-down vote on her nomination," said the president. "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."

But Senate conservatives said Halligan met the "extraordinary circumstances" justifying a delay in a confirmation vote.

"Ms. Halligan has a well-documented record of advocating extreme positions on constitutional issues, pushing legal arguments beyond what I think is reasonable, including in cases involving Second Amendment gun rights, abortion, the death penalty and others," said Sen. Jeff Sessions, R-Alabama, who's on the Judiciary Committee. "Her attempts to distance herself from her record were simply unconvincing. There is no question where she stands on these issues. She herself has said that the 'courts are the special friend of liberty ... the dynamics of our rule of law enables enviable social progress and mobility.' "

Obama is the only president in recent memory never to have successfully placed a nominee on the D.C. circuit court, which handles many high-profile appeals, including executive authority to fight terrorism and broader congressional power. There are four vacancies on that bench -- more than any of the 13 federal appeals courts -- and much of the debate on Halligan was whether the court's caseload was enough to justify filling the bench with more judges.

"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," said Sen. Mike Lee, R-Utah. "And it is certainly not the time to consider such a controversial nominee for that important court."

Judicial nominees reignite controversy

But left-leaning advocacy groups said this was all about politics.

"There's an obvious reason why Republicans have been so committed to blocking President Obama's nominees to this court," said Marge Baker, executive vice president at People For the American Way. "Republican presidents have been hugely successful in packing the D.C. Circuit with extraordinarily conservative judges, and they don't want any more jurists on the bench to dilute that ideological power."

Besides Roberts, Justices Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg served on the D.C. circuit before assuming their current jobs.

In a rare move, Senate Republicans voted in December 2011 to block Halligan the first time she was tapped for the appeals court, complaining that the 46-year-old Ohio native was too liberal and would bring her "extreme" political views to the bench.

During floor debate earlier this month, Senate Republican Leader Mitch McConnell reiterated the view of many of his colleagues that Halligan met the "extraordinary circumstances" standard, under a 2005 Senate agreement that allowed filibusters of judicial nominees only in extreme cases.

McConnell complained about Halligan's legal positions on gun rights, detainee rights and immigration, and said she would bring an activist agenda to the court.

But after the cloture vote failed, Obama said his choices were being held to a different standard. "Today's vote continues the Republican pattern of obstruction. My judicial nominees wait more than three times as long on the Senate floor to receive a vote than my predecessor's nominees," he said in a statement. "Until last month, for more than forty years, the court has always had at least eight active judges and as many as 12. A majority of the Senate agrees that Ms. Halligan is exactly the kind of person who should serve on this court, and I urge Senate Republicans to allow the Senate to express its will and to confirm Ms. Halligan without further delay."

As a U.S. senator, Obama joined the unsuccessful 2006 Democratic-led filibuster of Samuel Alito to join the Supreme Court. That effort failed, and Justice Alito has since carved a consistent conservative record in the court.

Also renominated for the D.C. circuit is Sri Srinivasan, the principal deputy solicitor general at the Justice Department, who has argued more than 20 cases before the Supreme Court. He would be the appeals court's first Asian-American, if confirmed. Unlike Halligan, Srinivasan has not even had a committee vote, the procedural first step to getting final floor confirmation.

Obama had nominated 33 people to the federal bench in January, including Halligan, saying at the time that many had waited more than six months for a vote. "I urge the Senate to consider and confirm these nominees without delay, so all Americans can have equal and timely access to justice," the president said.

On Tuesday, White House Press Secretary Jay Carney expressed frustration about the confirmation process, particularly involving Halligan.

"When Republicans filibustered her nomination in 2011, several of them hung their objections not on her qualifications or her judicial philosophy, but on the D.C. Circuit workload. In essence, they didn't object to her as a judge, just that the seat did not need to be filled. But since then, there has been an additional vacancy," with 188 pending cases at the court.

Republicans were criticized for delaying floor votes on many nominees in the president's first term in office. But the White House, too, has come under fire for not moving quickly to fill growing bench vacancies.

Some moderates from both parties have long lamented threats of delays and filibuster attempts of most presidential appointments. They say ongoing unfilled vacancies have created a crisis in many federal courts, with bulging dockets being handled by too few judges.

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