Update: The cloture vote on the nomination of David Hamilton for the Seventh Circuit is scheduled for later today. Read a profile which ran earlier this month in Human Events on Hamilton’s controversial record.
Obama’s first judicial nomination, David Hamilton was nominated in March for a seat on the United States Court of Appeals for the Seventh Circuit, based in Chicago. Senate Majority Leader Harry Reid has signaled that he intends to bring Hamilton’s nomination before the full Senate this week.
Back in March, an anonymous administration official, citing the president’s aim “to put the history of the confirmation wars behind us,” told the New York Times that Hamilton’s place as the administration’s first judicial nominee was not an accident. Hamilton was to serve, according to the official, “as a kind of signal,” about the type of moderate nominees the new president would select.
The seven intervening months have brought numerous examples of ultra-liberal appointees and judicial nominees. In this case the administration has sent a signal that even the most “moderate” of Obama’s nominees will come with decidedly radical baggage.
Now Alabama Sen. Jeff Sessions, the ranking Republican on the Judiciary Committee, sounded the alarm and put the brakes on the rapid-fire confirmation process.
Hamilton’s controversial rulings, which Sessions summarizes in an October 30 letter to his Senate colleagues, include a 2005 decision to prohibit the Indiana state Legislature from beginning its sessions with Christian prayers. The ruling was dismissed by the Seventh Circuit Court after an appeal, in which it was found that the individuals named in the suit were not harmed by the prayers, and therefore had no case.
"This is a judge that’s making the statement that having a prayer during a legislative session that ends in the name of ‘Allah the Magnificent’ is constitutional," said Jay Sekulow, chief counsel with the American Center for Law and Justice, "but having that same prayer end in the name of ‘Jesus our Messiah’ is not."
The court to which Hamilton was nominated, the Seventh Circuit, has repeatedly admonished and overturned Hamilton’s rulings. After Hamilton blocked the enforcement of Indiana’s informed consent abortion law, the Seventh Circuit said “No court anywhere in the country… has held any similar law invalid in the years since [the Supreme Court ruled in] Casey. Indiana… is entitled to put its law into effect and have that law judged by its own consequences.”
A central point in Sessions’ rebuke of Hamilton’s candidacy is his stance on President Obama’s “empathy standard,” the controversial legal approach that came under fire during U.S. Supreme Court Justice Sonia Sotomayor’s confirmation hearings.
Many view the "empathy standard" as legal justification for allowing judges to call on personal and life experience when making decisions, rather than a strict interpretation of the law. Even Sotomayor — who embraced this theory repeatedly before her confirmation hearing — openly rejected it while testifying to the committee.
“This is not the type of service that should be rewarded with a promotion. Indeed, this is one of those extraordinary circumstances where the President should be informed that his nominee is not qualified,” said Sessions.
Broader than this specific nominee, of concern to seasoned observers of the judicial nomination process is the unprecedented pace of judicial nominee hearings in this Congress, already at 64% of Obama’s nominees. At this point in the Bush administration only 38% of nominees had gotten to this stage.
Senators have had an average of 47 days from nomination to hearing to consider President Obama’s circuit nominees. This compares to 176 days during Bush’s first two years.
Some, including prominent conservative lawyer Geoffrey Slaughter defend Hamilton as left wing but still acceptable. "His judicial philosophy is to the left of mine, there’s no doubt about that, but his decisions are not so far outside of the mainstream as to be disqualified," said Slaughter.
Sen. Sessions has joined every Republican on the Senate Judiciary Committee in voicing disagreement with Slaughter’s claim. According to Sessions, Hamilton’s rulings “evidence an activist judicial philosophy,” and therefore disqualify him from promotion.
The case of David Hamilton is considered unlikely to get the press and wide-spread condemnation of the Van Jones scandal or even the several Obama appointments troubled by “tax-issues” earlier this year. While Hamilton may not be a high-profile Supreme Court nominee his appointment is still crucial. "It’s a big deal, because 99.9 percent of the cases do not go to the Supreme Court of the United States," said Sekulow. "It’s these appellate courts that are the final word.”