Senate considers Halligan for Court of Appeals

Caitlin Halligan, who Governor Kathy Hochul intends to nominate for an associate judge position on the Court of Appeals, appeared before the State Senate’s Judiciary Committee on April 18, 2023. Photo via Center for Community Alternatives/Twitter

By Jacob Kaye

Caitlin Halligan, a powerful attorney and former solicitor general for the State of New York, appeared before the State Senate’s Judiciary Committee on Tuesday to make her case as to why she believes she is qualified to serve as a judge on the state’s highest court.

It was the second Court of Appeals confirmation hearing the committee had held in as many days, but Halligan’s hearing marked a first – no candidate before Tuesday had ever appeared before the committee for a confirmation hearing before they had even received a formal nomination for the role by the governor.

Halligan’s appearance before the committee came a day after current Court of Appeals judge and chief judge nominee Rowan Wilson appeared before the committee, and a couple of hours before Wilson was confirmed to serve as the state’s top judge by the full Senate on Tuesday afternoon. The vote on Wilson’s confirmation was originally scheduled to take place around 3 p.m. on Tuesday but was delayed because he was hearing arguments from the Court of Appeals bench well into the afternoon.

Governor Kathy Hochul announced her intention to nominate Halligan to take Wilson’s seat on the Court of Appeals in conjunction with her chief judge nomination of Wilson last week. Allowing Hochul to bypass the typical process for filling a vacancy on the state’s top court was a new law that was introduced and passed by the legislature the week prior. The legislation, which was agreed upon by the governor and the legislature prior to its introduction, allows the governor to select a Court of Appeals nominee from the previous chief judge list if her nomination creates a vacancy on the court.

Some in the legal community have criticized the bill for what they say is its potential to limit already scarce opportunities for legal professionals to receive a recommendation from the Commission on Judicial Nomination to serve on the court. Others have questioned its legality, including a number of Republican lawmakers who reportedly are exploring bringing a lawsuit against the governor and Democratic leaders of the legislature for using the new law to nominate Halligan.

Republican Senator Anthony Palumbo, who previously sued Senate Democrats for denying former chief judge nominee Hector LaSalle a full vote in the Senate, began his questioning of Halligan on Tuesday by mentioning the potential legal battle to come.

“It gives me some concern because of course Ms. Halligan is on the list for chief judge, the list that was generated by the commission was seven names for the purposes of a chief judge, a job with very significant administrative duties versus an associate judge, which is what I'm assuming what we're screening Ms. Halligan for at this point,” Palumbo said. “It's just curious that we're doing it now because I know it's not really in the rules.”

State Senator Brad Hoylman-Sigal, who chairs the Judiciary Committee, responded by citing the bill the legislature passed a little more than a week ago.

“It’s in accordance with law,” Hoylman-Sigal said.

Because Halligan had not yet been nominated by the governor at the start of Tuesday’s hearing, the committee did not take a vote on her confirmation. That vote will likely come later in the week.

If confirmed, Halligan will fill the seventh and final spot on the Court of Appeals bench, which has been without a chief judge since former Chief Judge Janet DiFiore abruptly resigned in August 2022. The current chief judge vacancy is the longest in the court’s history.

Upon her nomination, Halligan is largely expected to be confirmed.

Shortly after Tuesday’s hearing Hoylman-Sigal, who was one of the main opponents to Hochul’s nomination of LaSalle, said that he believed Halligan would be “an excellent choice for the seventh and final vote on the New York State Court of Appeals.”

“As someone who is familiar with Ms. Halligan’s private practice and public service for over 25 years, I can attest that she has the experience and background to protect the rights of New Yorkers and their access to justice on our highest court,” he said. “If Governor Hohcul formally nominates Ms. Halligan, I will proudly vote to confirm her.”

‘Significant resume and qualifications’

Senators from both sides of the aisle praised Halligan’s experience as a litigator on Tuesday.

“Your resume is stellar, educationally and just the work that you've done in a variety of areas is incredibly impressive,” State Senator Jamaal Bailey said.

Halligan received her undergraduate degree from Princeton University and her law degree from Georgetown University Law Center. After graduating, she served as a law clerk for a U.S. Court of Appeals circuit judge and for then-U.S. Supreme Court Justice Stephen Breyer.

She then went into private practice before going to work with the New York attorney general’s office, where she went on to serve as solicitor general. Halligan then went back into private practice, before moving to the Manhattan district attorney’s office to serve as its general counsel. She made one final move back into private practice at Selendy & Gay, where she currently works.

In 2010, then-President Barack Obama nominated Halligan to serve as a judge on the United States Court of Appeals for the District of Columbia Circuit but Senate Republicans filibustered her nomination. She was again nominated for the same spot on the bench the next year but a prolonged confirmation process prompted her to withdraw herself from contention.

Halligan was included on the most-recent shortlist to fill the current chief judge vacancy, marking the second time she’s been recommended by the Commission on Judicial Nomination for the position. She was also recommended by commission to fill associate judge positions in 2015, 2017 and twice in 2021.

“My perspective about the commission I think is informed by my experiences appearing in front of them,” Halligan said in response to questions about a recent push to abolish the commission. “I'm not sure who it was that first said, ‘If at first you don't succeed, try, try again,’ but I think that is what I have done with respect to applying to serve on the Court of Appeals.”

What kind of judge will Halligan be?

Unlike the recent nominations of LaSalle and Wilson, senators considering whether to confirm or reject Halligan’s impending nomination did not have a trove of past decisions to go through to determine her potential positions from the Court of Appeals bench.

Instead, they looked to some of her past clients and asked her, at times, point blank, about what positions she would take on cases that likely will eventually make their way to the top court.

Halligan was asked several times on Tuesday about a case in which she represented Chevron as they pursued racketeering charges against Steven Donziger, a human rights lawyer who had successfully secured $9 billion in damages for a group indigenous Ecuadorians who were suing Chevron over the company’s pollution of the Amazon.

“There are some people who articulated concern, if not alarm, about your all but certain nomination to the Court of Appeals – would it be unfair for people to say that when representing certain clients Halligan has advocated regressive legal positions,” Queens State Senator John Liu said. “For these clients, she has…defended Chevron in its decades long actions against a well-known human rights and environmental lawyer.”

“I know many prominent and well-known attorneys who would decline certain kinds of cases,” he added. “Have you declined certain kinds of cases that you felt would not uphold your own values?”

In response to Liu and others who questioned her over the Chevron case, Halligan cited her pro-bono work representing pro-environmental groups and tenant organizers. She also said that she believes that while her work as an attorney would inform her work as an associate judge on the Court of Appeals, the two positions are different.

“I have represented a wide range of clients and I do appreciate that some of the positions I've taken on behalf of those clients will be sympathetic or unsympathetic to various members of the committee,” Halligan said.

“I think that that range of experience will be very helpful to me,” she added. “With respect to my own values, I think my pro-bono work best represents where my own beliefs lie because it's work as I said, that I have taken on because it matters to me, because it is important to my community.”

In response, Liu said that he believed Halligan’s answer “still doesn't give us that much insight into where you would stand on certain issues that come before the Court of Appeals.”

Toward the end of the hearing, freshman Republican Senator Mark Walczyk explicitly asked how Halligan would rule on 2nd Amendment cases. Last year, the U.S. Supreme Court struck a New York law that required people seeking a license to carry a handgun in public to first prove that they had a “proper cause.” Though state legislators quickly passed a new law that put limits on open carry but that they still said fell within the scope of the Supreme Court decision, that law has also faced legal challenges.

Walczyk asked if Halligan herself owned a handgun, how she would rule on cases involving the state legislature’s bail reform laws, if she is pro-life and if she believes children should say the Pledge of Allegiance in school.

“Several of your colleagues have stressed the importance…of setting aside one's own personal views if you hope to sit as a judge, and so I think that my personal views on those kinds of questions would be ones that I would look to find beside the point if I were to be sitting on the bench,” Halligan said.