11.19.09

Senate Confirms Hamilton To Seventh Circuit

The Senate Thursday confirmed Judge David Hamilton to the Seventh Circuit Court of Appeals.  The confirmation broke a five month delay by Senate Republicans in considering the nomination.  The final vote on Hamilton’s confirmation was 59-39. 

 Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), who, as chairman, worked to confirm more judicial nominations during the Bush administration than did a Republican majority, praised the confirmation, and urged the Senate to reject partisan efforts to filibuster pending nominations and legislation.  Leahy called Hamilton as a well qualified nominee, with a 15-year record of moderation on the federal bench. 

“This is a nomination that should be confirmed and should have been confirmed months ago.   David Hamilton is a fine judge and will make a good addition to the United States Court of Appeals for the Seventh Circuit,” said Leahy. 

President Obama nominated David Hamilton – the first judicial nomination of the new administration – on March 17.  His nomination received bipartisan support from Indiana Senators Richard Lugar (R), the Senate’s senior Republican member, and Evan Bayh (D).  His nomination was reported by the Judiciary Committee on June 4, and has languished on the Senate’s executive calendar for more than five months.  Hamilton was unanimously rated well-qualified by the American Bar Association.  He has spent 15 years as a federal district judge. 

On Tuesday, the Senate broke through the Republican filibuster of the nomination by voting 70-29 to invoke cloture - a motion to bring debate to an end – on the nomination. 

There now remain 10 judicial nominations pending on the Senate’s executive calendar.  There are also nine executive nominations reported by the Judiciary Committee pending before the full Senate, including three nominations for Assistant Attorneys General.  For more information about pending nominations, visit the Senate Judiciary Committee website

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Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On The Nomination Of David Hamilton Of Indiana
To The United States Court Of Appeals For The Seventh Circuit
November 19, 2009

The Senate is concluding its long–delayed consideration of the nomination of Judge David Hamilton of Indiana to the Seventh Circuit.  Early this week, 70 Senators -- Democrats, Independents and Republicans -- joined together to overcome a filibuster of this nomination.  This has been a record year for filibusters by the Republican minority: filibusters of needed legislation, filibusters of executive nominations and filibusters of judicial nominations, which just a few years ago they proclaimed were “unconstitutional.” Although their filibuster failed, what they achieved was obstruction and delay.  This is a nomination that has been stalled on the Senate Executive Calendar for five and one-half months, since June 4.  In the days since that bipartisan majority of 70 Senators voted to bring to an end the debate on the Hamilton nomination, and in the more than 30 hours of possible debate time since then, Republican Senators have devoted barely one hour to the Hamilton nomination.  Only four Republican Senators have spoken at all—and that includes the Senator from Alabama who repeated the claims he had made five times to the Senate since September 17.

As has been reported since the nomination was made in mid-March, President Obama’s selection of Judge Hamilton as his first judicial nominee was intended to send a message of bipartisanship.  President Obama reached out and consulted with both home state Senators, Senator Lugar and Senator Bayh, a Republican and a Democrat, in making his selection.  This stands in sharp contrast to the methods of his predecessor, who was focused on a narrow ideological effort to pack the Federal courts, often did not consult, and too often tried to force extreme candidates through the Senate.  That is what led to filibusters—that and Senate Republicans changing of the rules, procedures and protocols of the Senate.     

The nomination of Judge Hamilton is an example of that consultation.  Other examples are the recently confirmed nominees to vacancies in South Dakota, who were supported by Senator Thune, and the nominee confirmed to a vacancy in Florida, supported by Senators Martinez and LeMieux.  Still others are the President’s nomination to the Eleventh Circuit from Georgia, supported by Senators Isakson and Chambliss, his recent nominations to the Fourth Circuit from North Carolina, which I expect will be supported by Senator Burr, and the recent nomination to a vacancy in Alabama supported by Senators Shelby and Sessions on which the Judiciary Committee held a hearing two weeks ago.  

President Obama has respected the Senate’s constitutional advice and consent role by engaging in meaningful consultation in making his judicial nominations. He has consulted with home state Senators from both sides of the aisle.  This stands in sharp contrast to the methods of his predecessor, who was focused on a narrow ideological effort to pack the Federal courts, often did not consult, and too often tried to force extreme candidates through the Senate.  That is what led to filibusters—that and Senate Republicans changing of the rules, procedures and protocols of the Senate.    In today’s Washington Post, columnist E.J. Dionne’s writes about this occurrence and yesterdays failed attempt at a filibuster.  I ask unanimous consent that a copy of this column be inserted into the record.

Yet, despite that consultation and the support and endorsement of the senior Republican in the Senate, Senator Lugar, Republicans have filibustered and now oppose this nomination.  Their response to President Obama’s outreach and seeking to turn the page and set a new tone in judicial nominations by restoring comity is to attack his well qualified nominees and stall Senate action.  In May, just before Judge Hamilton’s nomination was reported by the Committee, a senior Republican Senator reflected upon the Senate confirmation process for judicial nominees and correctly observed: “[C]harges come flying in from right and left that are unsupported and false.  It’s very, very difficult for a nominee to push back.  So I think we have a high responsibility to base any criticism that we have on a fair and honest statement of the facts and that nominees should not be subjected to distortions of their record.”  I agree.  

Regrettably, however, that is not how Republican Senators have acted.  Judge Andre Davis of Maryland, a distinguished African-American judge, was stereotyped as “anti-law enforcement” last week by Republican critics, and this week Judge Hamilton, the son of a Methodist minister, is reviled as hostile to Christianity.  That is not fair treatment.

The unfair distortions of Judge Hamilton’s record by right-wing special interest groups seeking to vilify him have been repeated in editorials in The Washington Times and by Republican opponents in the Senate.  They resort to twisting and contorting his judicial record and his views, and ignore the record before the Senate. Those distortions of Judge Hamilton’s record were soundly refuted earlier this week by the senior Senator from Indiana, Senator Lugar.  I doubt that I will add to his sound and thoroughgoing rebuttal.  Judge Hamilton’s critics are wrong and have been wrong all along.  

Senator Lugar and Senator Bayh believe Judge Hamilton is superbly qualified and a mainstream jurist.  I agree.  Yet, Republican critics of Judge Hamilton are determined to ignore the knowledge and endorsement of these home state Senators as well as Judge Hamilton’s long, mainstream record on the bench to paint an unfair caricature of him.  They are wrong to ignore Judge Hamilton’s record of fairly applying the law in over 8,000 cases and his “well qualified” rating by the American Bar Association.  These critics ignore Judge Hamilton’s testimony before the Committee when he said, “I make decisions based on the facts and applicable law of each case.” They ignore his statement that “sympathy for one side or another” in a case “has no role in the process” of judging.   Instead, they construct and then seek to impose their own “litmus tests” and contort his record and statements in their ends-oriented effort to find him wanting.  

Republican Senators did not object when Chief Justice Roberts testified at his confirmation hearing that “of course, we all bring our life experiences to the bench.”  Republican Senators did not criticize Justice Alito at his confirmation hearings in 2006 for describing the importance of his background when evaluating discrimination cases.  Justice Alito said: “When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender.  And I do take that into account.”
 
I recall one nominee who spoke during his confirmation hearing of his personal struggle to overcome obstacles.  He made a point of describing his life as:
 
 “[O]ne that required me to at some point touch on virtually every aspect, every level of our country, from people who couldn't read and write to people who were extremely literate, from people who had no money to people who were very wealthy.  So, what I bring to this Court, I believe, is an understanding and the ability to stand in the shoes of other people across a broad spectrum of this country.”
 
That is the definition of empathy.  And that nominee was Clarence Thomas.  Indeed, when President George H.W. Bush nominated Justice Thomas to the Supreme Court he touted him as, “a delightful and warm, intelligent person who has great empathy and a wonderful sense of humor.”  Justice O’Connor, who had a long and distinguished record of even-handedness on the Supreme Court, explained recently: “You do have to have an understanding of how some rule you make will apply to people in the real world. I think that there should be an awareness of the real-world consequences of the principles of the law you apply.”

Yet now Republican Senators seek to apply a newly constructed “litmus test” that rejects what they had previously viewed as positive attributes as disqualifying.  Their opposition to President Obama is so virulent that they act as if they must oppose anything he supports.  If he sees value in judges with real world perspectives who consider the real impact of various readings of the law on everyday Americans, they must react in knee jerk opposition.  They use a distorted lens to review a 15-year judicial record in which he has not substituted empathy for the law to somehow conclude that he will if confirmed to the new appointment.  It is reminiscent of the Salem witch trials.  They see what they want to see.

Senator Lugar noted this week that the President of the Indiana Federalist Society endorsed Judge Hamilton as an “excellent jurist and first-rate intellect” with a judicial philosophy “well within the mainstream.”  Senator Lugar’s own review of his record, with help from a former Reagan counsel, led him to conclude based on that record that Judge Hamilton has not been a judicial activist and has ruled objectively and within the judicial mainstream.”  Senator Bayh reinforced that conclusion with his statements in support of the nomination.  

Republican critics are slavishly channeling the talking points of far right narrow special interest groups to twist a handful of the Judge Hamilton’s 8,000 cases to make biased and unfair attacks on the character and record of a moderate judge and a good man.  For example, they have misrepresented two of his cases, Hinrichs v. Bosma (2005) and Grossbaum v. Indianapolis-Marion County Bldg. Authority (1994) to falsely describe Judge Hamilton, the son of a Methodist minister, as hostile to religion, and to Christianity in particular.  In fact, these cases show nothing more than that Judge Hamilton has consistently and objectively performed his duty as a judge to apply the law carefully to the case before him.

In Hinrichs v. Bosma, Judge Hamilton did not eliminate prayer, as some critics have charged.  In fact, his narrow and carefully considered ruling was that the Indiana Legislature may begin its sessions with any nondenominational, nonsectarian prayers—prayers that do not advance a particular faith.  He noted that those prayers “must be non-sectarian and must not be used to proselytize or advance any one faith or belief or to disparage any other faith or belief.”  Prayers from any religion—be they Christian, Jewish, Muslim or from another religion-- that advance a particular faith were not permissible.
 
The plaintiffs in Hinrichs had challenged the Christian orientation of most of the prayers delivered during the 2005 Indiana House session.  So, as part of his analysis, Judge Hamilton reviewed the 45 available transcripts of the 53 opening prayers that were offered during that session.  He relied on undisputed testimony of scholars and clerics of different faiths who themselves concluded that  “many of the legislative prayers delivered during the 2005 House session were sectarian, Christian in orientation, and sent a strong message of non-inclusion to those who are not Christian.” His careful ruling did not depart from settled precedent.  It followed the settled law from the Supreme Court and in the Seventh Circuit interpreting the Establishment Clause of the First Amendment of the Constitution.
 
The critics of Judge Hamilton who have made much of the fact that Judge Hamilton’s decision was overturned by the Seventh Circuit ignore the fact that it was overturned only on the technical issue of standing, not on the merits of Judge Hamilton’s opinion.  In fact, even on this narrow technical point the Seventh Circuit initially upheld Judge Hamilton’s 2005 decision that taxpayers had standing to sue the Indiana House of Representatives, challenging the practice of offering sectarian prayers at the beginning of sessions as a violation of Establishment Clause.  The Seventh Circuit only reversed Judge Hamilton on this technical threshold question after the Supreme Court handed down an intervening 2007 decision, Hein v. Freedom from Religion Foundation (2007) was issued after Judge Hamilton’s decision was on appeal.  In doing so, the Seventh Circuit acknowledged that it also was reversing its own previous decision in the case that affirmed Judge Hamilton’s ruling that plaintiffs had standing.

These same critics have gone so far as to claim that Judge Hamilton favors Muslim prayers to Christian ones by allowing prayers to Allah, while forbidding prayers to Jesus Christ.  This slur led to a The Washington Times editorial denouncing the nomination.  As Judge Hamilton explained in a ruling on a post-trial motion in Hinrichs, closely following Supreme Court precedent from Marsh v. Chambers (1983), the mere use of the word for “God” in another language, such as the “Arabic Allah, the Spanish Dios, the German Gott, the French Dieu, the Swedish Gud, the Greek Theos, the Hebrew Elohim, the Italian Dio” does not make a prayer sectarian, because it does not “advance a particular religion or disparage others.”   However, as Judge Hamilton testified in response to a question from Senator Graham, under the reasoning of his ruling in Hinrichs, “a prayer asserting that Mohammed was God’s prophet would ordinarily be considered a sectarian Muslim prayer” and impermissible.

Senators who charge that Judge Hamilton’s ruling allows Muslim prayers whole forbidding Christian ones have either not read the case or choose to ignore what it says.  Judge Hamilton’s analysis of the 53 opening prayers that were offered in the Indiana House during the 2005 legislative session, found that all but one were delivered by Christian ministers or ministers identified with Christian Churches.  He noted that the one prayer that was not, which was delivered by a Muslim man, unlike the vast majority of the prayers from Christian clergy, was “inclusive and was not identifiable as distinctly Muslim from its content.”

Judge Hamilton also faithfully applied binding precedent when deciding Grossbaum.  In that case, Judge Hamilton correctly relied on then-current Supreme Court and Seventh Circuit precedent interpreting the free speech clause of the First Amendment to reach his decision that the Indianapolis building authority acted lawfully in refusing to allow a rabbi to display a menorah in the lobby of the city-county building.  His decision relied on a 1990 Seventh Circuit decision, Lubavitch Chabad House, Inc. v. City of Chicago, which upheld a decision by the City of Chicago to put a Christmas tree in the O'Hare Airport and, at the same time, to exclude private displays of religious symbols.

As with Hinrichs, right wing critics point to the Seventh Circuit’s reversal of Judge Hamilton’s decision to argue that he got it wrong and did not apply the law.  What this account leaves out is that the Supreme Court case relied on by the Seventh Circuit to reverse Judge Hamilton did not come down until 1995, after Judge Hamilton issued his decision in Grossbaum.  In reversing Judge Hamilton’s decision, the Seventh Circuit specifically noted that Judge Hamilton acted without benefit of the Supreme Court’s new guidance in this area provided by Rosenberger v. Rector & Visitors of the University of Virginia (1995).   

Had Judge Hamilton ignored the binding precedent in certain religion cases to make his decision based on personal beliefs and not the law, he would have been an activist going beyond his role as a district judge. As I read these cases, I had in mind the words of Senator Lugar who said when he testified in support of Judge Hamilton:

“I have known David since his childhood.  His father, Reverend Richard Hamilton, was our family’s pastor at St. Luke’s United Methodist Church in Indianapolis, where his mother was the soloist in the choir.  Knowing first-hand his family’s character and commitment to service, it has been no surprise to me that David’s life has borne witness to the values learned in his youth.”

Senator Lugar knows Judge Hamilton’s character.  And the cases critics would use to savage it show nothing more than that Judge Hamilton understands, again in Senator Lugar’s words, “the vitally limited, role of the Federal judiciary faithfully to interpret and apply our laws, rather than seeking to impose their own policy views.”
 
Critics have similarly twisted and disparaged Judge Hamilton’s record on reproductive rights to paint him as an agenda-driven ideologue by pointing to a single case, A Woman’s Choice v. Newman (1995), even though in that case he carefully applied Supreme Court precedent.
 
In A Woman’s Choice, Judge Hamilton blocked enforcement of part of an Indiana abortion law that required pregnant women to make two trips to a clinic before having an abortion. Judge Hamilton applied the law set forth by the Supreme Court in Planned Parenthood v. Casey (1992) and, after carefully examining the facts, concluded that many Indiana women would not be able to make a second trip to a hospital or a clinic.  Therefore, under the standard in Casey—the standard that Chief Justice Roberts and Justice Alito pledged to follow as binding precedent when nominees before the Judiciary Committee—Judge Hamilton concluded that the law undermined a woman’s constitutionally protected right to choose.

Critics have seized on a split decision from the Seventh Circuit reversing Judge Hamilton’s decision to grant a pre-enforcement injunction of the informed consent provision to mischaracterize his decisions in that case as activist.  However, in reversing Judge Hamilton on the injunction, noted conservative icon Judge Easterbrook was criticized by another judge on the panel for “disregard[ing] the standards that were established by the Supreme Court in [Casey]” and was criticized for “brush[ing] aside the painstakingly careful findings of fact” that Judge Hamilton made.  Even the concurring opinion recognized that Judge Easterbrook’s opinion embraced dissenting opinions in other cases.  Critics have also seized on a falsehood that Judge Hamilton blocked enforcement of the law for seven years, ignoring his modification of the initial injunction to permit Indiana to enforce most of its informed consent law after the Indiana Supreme Court ruled on a state law question of first impression that Judge Hamilton had certified so that he could be guided by the state’s highest court on a question of state law, and ignoring Indiana’s choice not to appeal Judge Hamilton’s timely-issued decisions on the injunction until after trial, which Indiana had asked Judge Hamilton to postpone.  Judge Hamilton’s decisions in that case show that he was a careful judge showing appropriate deference to Indiana when addressing a matter of first impression in that state, not an ideologue or an activist.   

Senators painting a false picture of Judge Hamilton’s record have also cherry-picked his long record on the bench of handling criminal cases to focus on one or two cases they assert show  that he is too lenient on criminals.  Like the other charges against Judge Hamilton, this does not hold up to scrutiny.  In his 15 years on the bench, the Government has appealed only two of the approximately 700 criminal sentences Judge Hamilton has handed down.  Judge Hamilton’s critics ignore cases like U.S. v. Turner (2006), in which Judge Hamilton sentenced a child pornographer to 100 years in prison.  They ignore U.S. v. Clarke (1999), in which Judge Hamilton sentenced a defendant to 151 months on three counts of drug distribution and an additional 60 months on a firearm charge, denying the defendant’s motion for a reduced sentence citing the defendant’s “dangerous role in the distribution network.”  They ignore cases like U.S.  v. Garrido-Ortega (2002), in which Judge Hamilton sentenced a defendant to 70 months imprisonment for possession of counterfeit alien registration receipt cards and for being found in the United States as an alien previously deported after conviction, then denied the defendant’s motion for reconsideration of sentence.  They ignore decisions like U.S. v. Steele (2009), U.S. v. Hagerman (2007), and U.S. v. Ellis (2007), in which Judge Hamilton imposed heavy sentences for drug dealing, obstruction of justice and for tax evasion.  This charge against Judge Hamilton simply does not hold up.
 
Finally, we have heard repeatedly the falsehood that Judge Hamilton is an activist judge who will try to amend the Constitution through “footnotes.”   However, Judge Hamilton testified in response to written questions from Senators that he believes that “judges do not ‘add’ footnotes to the Constitution” and that “constitutional decisions must always stay grounded in the Constitution itself.”
In response to Senator Sessions, Senator Grassley and others, Judge Hamilton wrote:

“The phrase ‘footnotes to the Constitution,’ described by my late colleague Judge S. Hugh Dillin, refers to the case law interpreting the Constitution. By that phrase, I believe he meant that the general provisions of the Constitution take on their life and meaning in their application to specific cases, that the case law is not the Constitution itself, and that constitutional decisions must always stay grounded in the Constitution itself. In my view, judges do not ‘add’ footnotes to the Constitution itself. They apply the Constitution to the facts of the particular case and add to the body.”   

Further, in response to another question from Senator Sessions, Judge Hamilton testified: “I have not added footnotes to the Constitution. I believe the constitutional decisions I have made have been consistent with the express language and original intent of the Founding Fathers.”  I am hard-pressed to understand why Senators would ask such questions if they do not consider the nominee’s clear answers.

I hope that Senators now considering whether to support this well-qualified mainstream nominee resist the partisan effort to build a straw man out of one or two opinions in a 15-year record on the bench.   I hope they do not allow right wing talking points to overshadow Judge Hamilton’s long and distinguished record on the bench.  Instead, I urge Senators to heed the advice of Senator Lugar who urged that “confirmation decisions should not be based on partisan considerations, much less on how we hope or predict a given judicial nominee will ‘vote’ on particular issues of public moment or controversy.”

This is a nomination that should be confirmed and should have been confirmed months ago.   David Hamilton is a fine judge and will make a good addition to the United States Court of Appeals for the Seventh Circuit.

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