In the first major showdown over the future direction of the federal judiciary, Democratic leaders in the Senate scored a victory on Tuesday by defeating a Republican attempt to stall indefinitely President Obama’s nominee to the federal appeals court in Chicago.
The vote opens the way to Judge Hamilton’s expected easy confirmation via a simple majority vote set to take place on Wednesday.
Leading the opposition was Alabama Sen. Jeff Sessions, who said he had no problem with Hamilton’s character, intelligence, or ability as a jurist. Instead, the Republican said, he opposed the nomination because Hamilton appeared to embrace a “results-oriented, activist philosophy.”
He said some of Hamilton’s rulings suggest “a political agenda that is guided by personal beliefs and not the rule of law.”
Speaking on Hamilton’s behalf, Indiana Sen. Evan Bayh lamented “this sad state of our judicial nominating process.”
“I know first hand [Hamilton] is a highly capable lawyer who understands the limited role of the federal judiciary,” Senator Bayh said.
Obama's first pick to the federal bench
Hamilton, currently the chief judge at the US District Court in Indianapolis, was Mr. Obama’s first announced appointment to the federal bench in March. At the time it was seen as a compromise nomination and quickly won the support of the senior senator from Indiana and the most senior Republican in the Senate, Richard Lugar.
The tactic is familiar. Threats of filibusters and stalling were frequent during the both the Clinton and Bush administrations, with the minority party using Senate rules to clog up the confirmation process.
The battle came to a head during the Bush years with a Republican threat to use the so-called “nuclear option” by rewriting Senate rules, thus ending the tradition of requiring 60 votes to conclude debate on a nominee.
Once debate is concluded, confirmation is decided by a simple majority vote of the full Senate.
During the Bush administration, Senate Republicans suggested that it was unconstitutional for Democrats to block Bush appointees in this way. Now it is Republicans using the tactic, with Democrats complaining.
“Judge Hamilton is a pawn in partisan political warfare – that is the long and short of it,” said Sen. Arlen Specter (D) of Pennsylvania. Senator Specter noted that during the Bush years “this chamber was almost torn apart with the ferocity and intensity of the partisanship.”
He added, “It is my hope that at some point we could declare a truce. The Hamilton nomination would be a good time to do that.”
In Hamilton's history, rulings some Republicans dislike
Hamilton has served as a federal judge for 15 years, presiding over more than 8,000 cases. The American Bar Association rates him “highly qualified.”
He is a graduate of Haverford College and Yale Law School. He studied religion as a Fulbright Scholar in Germany. Between stints as a civil litigator in Indianapolis, he served as counsel from 1989 to 1991 to then Indiana Gov. Evan Bayh.
Republican critics have focused on his work, for two months after graduating from college in 1979, as a fundraiser for the Association of Community Organizations for Reform Now (ACORN). Some have also complained that for two years in the 1980s he served as a board member and vice president for litigation at the Indiana Civil Liberties Union.
At the center of the Republican attack are several rulings made by Hamilton as a federal judge. In 2005, he ordered the Indiana House of Representatives to stop opening their legislative sessions with a prayer because the offered prayer was overwhelmingly a Christian prayer and thus violated the Establishment Clause, he said.
In 2001, Hamilton blocked implementation of an Indiana informed consent law that required women to make two trips to an abortion clinic. The first trip was merely informational. The woman would have to return later for the procedure. The judge ruled that the law was an unconstitutional restriction on a woman’s right to abortion. The decision was overturned by the federal appeals court.
Balance of power on appeals courts at stake
The Hamilton nomination fight is about more than filling a vacant seat on the Seventh Circuit. At stake ultimately is the balance of power on several federal courts of appeals between Democratic and Republican appointees.
At the Richmond-based Fourth Circuit, that balance swung in favor of Democratic appointees 6 to 5 last week with the confirmation of Judge Andre Davis to a vacant seat. The Fourth Circuit was long a conservative judicial stronghold, but could now swing sharply to the left with four vacant seats open for Obama appointments.
The Second Circuit in New York is divided between five Republican appointees and four Democratic appointees, with four open seats.
The Philadelphia-based Third Circuit is divided six to six with two open seats.
Overall there are 21 vacancies on the 179-judge federal appeals courts. Including Judge Davis and Hamilton, Obama has nominated nine individuals to vacant appeals court seats so far.
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