Patrick Leahy said the judge's gun stance is a 'fictitious' reason to oppose her nomination. GOP opposes nominee over guns

Senate Democrats will attempt Wednesday to break another filibuster on the nomination of Caitlin Halligan to the federal appeals court in Washington, D.C.

And it’s not looking like the third time will be the charm.


Halligan has already failed to garner the needed 60 votes to break a filibuster from Republicans on two previous attempts to be appointed to the U.S. Court of Appeals for the District of Columbia Circuit, which is considered one of the most powerful courts in the country. But this time, her past legal battles against gun manufacturers are making the road harder for Halligan, whose nomination is opposed by the National Rifle Association.

“That’s probably the biggest of three or four issues,” Sen. Chuck Grassley (R-Iowa) said when asked about Halligan’s views on guns.

Grassley said he didn’t expect any Republicans to switch their votes to support Halligan or to support cloture.

Halligan’s pro-gun control views are taking center stage yet again at a key point in the Senate gun control debate. The Senate Judiciary Committee plans to mark up a trafficking bill on Thursday, and another bipartisan group of senators is trying to reach agreement on legislation to institute universal background checks. But it’s unclear whether either measure will gain traction on the Senate floor.

As solicitor general of New York in 2003, Halligan signed on to a case pursued in state court by Eliot Spitzer, then state attorney general, that gun manufacturers should be held liable for the use of their products by third parties.

“Given Ms. Halligan’s clear opposition to a major federal law that was essential to protecting law-abiding Americans’ right to keep and bear arms, as well as an important industry that equips our military and law enforcement personnel, we must respectfully oppose her confirmation, including the vote on cloture,” the NRA wrote to senators when the body last voted on Halligan.

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), who ushered Halligan’s nomination through the committee on a partisan vote, said guns are a “fictitious” reason to oppose her nomination.

“If someone wants a fictitious reason to vote against a good woman, then they’ll use a fictitious reason like guns to vote against a good woman,” Leahy said, placing extra emphasis each time on the word “woman.” “I would say if they’re using guns, it’s a fictitious reason to vote against this good woman.”

He said her qualifications should not hold her back.

“I’ve seen dozens and dozens of people go on through on voice votes that don’t begin to be as qualified as her,” Leahy said.

Senate Majority Leader Harry Reid (D-Nev.) offered a warning to Republicans, reminding them of the deal struck on the filibuster that was supposed to expedite the approval process of judges. That deal was struck after Halligan’s nomination was last considered.

“I think the Republicans better be very careful what they’re doing here,” Reid told reporters on Tuesday. “We have a situation where there was going to be agreement on judges except under extraordinary circumstances. There are no extraordinary circumstances with this woman.”

Consistently labeled “controversial” by Republicans, Halligan was first nominated in 2010, and two votes have already been held to try to overcome Republican objections. Both times, Democrats failed and her nomination was returned to President Barack Obama, who continues to renominate her.

Halligan spoke publicly in support of the case to hold third parties liable, as well as other cases that were meant to hamstring gun manufacturers and keep handguns out of New York state.

The case didn’t make it far.

In fact, Congress later passed legislation, the Protection of Lawful Commerce in Arms Act , that would prevent that type of lawsuit, which had gained support among anti-gun control supporters. Halligan crusaded against the law, working through the courts to try to undermine it.

Now, Republicans are pointing to Halligan’s argument in favor of Spitzer’s case as evidence that she shouldn’t be approved to sit on the circuit court.

Only one Republican crossed party lines in her most recent vote to try to break the filibuster, Alaska Sen. Lisa Murkowski. Sen. Orrin Hatch (R-Utah) said he will most likely again vote “present” on the cloture vote because he opposes filibustering judicial nominees.

And the Republicans who opposed her nomination the last go-round are just as determined.

Sen. Jeff Sessions (R-Ala.) has been one of Halligan’s most vocal opponents this week. While the most recent gun debate hasn’t changed his views, Sessions said other Republicans might oppose her nomination more strongly now.

“I feel very, very strongly that one of the most unacceptable positions that’s been taken in the gun debates was by certain cities and others who thought that a manufacturer who produces a lawful product becomes liable for the criminal acts for a criminal,” Sessions said. “It would be like an ax manufacturer being sued because someone used an ax to kill somebody.”

He added, “This was some utterly unacceptable legal theory contrary to all principles of law. That was a high concern of mine based on her support for that.”

Sessions argued that her track record on going after gun manufacturers could make her trying to legislate from the bench.

“I don’t feel like her record over a series of important issues evidences sufficient recognition that judges are to serve under the law and under the Constitution,” Sessions said.

During his last round of nominations, the argument was made that the D.C. Circuit Court didn’t need another judge because its caseload remained low.

But Reid pushed back against that idea.

“Originally, they said we don’t need more judges on the D.C. circuit. Now there are four vacancies,” Reid said. “I think we need more judges on the circuit. Let them vote against her, but don’t stop her from having a vote.”

Correction: A previous version of this story said the vote would take place on Thursday.