The US Senate voted 59 to 39 on Thursday to elevate Judge David Hamilton from his current job as chief judge at the federal courthouse in Indianapolis to a seat on the Seventh US Circuit Court of Appeals.
The vote comes eight months after Judge Hamilton was nominated to the Chicago-based appeals court.
Hamilton drew the first significant Republican opposition to a judicial nominee by President Obama. An attempted filibuster on Tuesday failed, with Sen. Jeff Sessions (R) of Alabama able to muster only 29 votes. Seventy senators agreed to allow the nomination to move forward to Thursday’s vote.
The Hamilton nomination was being closely watched for indications of whether the kind of fiery confirmation battles waged by Democrats against Bush nominees would now be waged by Republicans against Obama nominees. The answer is yes.
Moderate or activist?
Democrats have portrayed Hamilton as a judicial moderate and a consensus nominee. Republicans have highlighted some of his more controversial opinions – striking down as unconstitutional the opening prayer at the Indiana House of Representatives and blocking a state informed-consent abortion law for seven years. They say these and other decisions suggest Hamilton will be a liberal activist on the appeals court.
“It is like the Salem witch trials. They see what they want to see,” Senator Leahy said of Hamilton’s critics.
Hamilton has served as a federal judge in Indiana for 15 years, presiding over 8,000 cases.
He won the support of both senators from Indiana, Democrat Evan Bayh and Republican Richard Lugar. The American Bar Association gave him a “well qualified” rating. The president of the conservative Indiana Federalist Society said he was an “excellent jurist with a first-rate intellect,” adding that Hamilton’s judicial philosophy is “left of center, but well within the mainstream.”
GOP critical of Hamilton's past
In addition to several of his rulings, Republican critics have focused on Hamilton’s two months of work in the summer of 1979 – 30 years ago – as a fundraiser for the controversial group ACORN, the Association of Community Organizations for Reform Now. They have also criticized his two years of service in 1987 and 1988 as a board member and vice president for litigation at the Indiana Civil Liberties Union.
Senator Sessions and other critics say Hamilton embraces Mr. Obama’s call for judges with empathy. In written answers to the Senate, Sessions said, Hamilton expressed the belief that judges may reach different decisions in cases depending on the practical consequences of the decision.
“That is not law, it is more akin to politics,” Sessions said.
Not all Republicans were persuaded. Senator Lugar, the senior Republican in the Senate, rejected claims that Hamilton’s judicial decisions reflect a political agenda. “I believe a closer look at his record will reveal that Judge Hamilton has not been a judicial activist and has ruled objectively and within the judicial mainstream,” he said in a speech on the Senate floor Monday.
Personal endorsement from a key Republican
“I have known David since his childhood,” said Lugar, in an unusually personal endorsement. “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.”
Lugar continued: “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.”
Hamilton will fill a seat left vacant by Judge Kenneth Ripple, a Reagan appointee, who took senior status last year.
He joins an 11-judge court staffed by seven judges appointed by Republican presidents and four by Democratic presidents. The circuit covers Illinois, Indiana, and Wisconsin.
There are currently 21 vacancies among the nation’s 179 federal appeals court judges. Obama has nominated 12 individuals, and two have been confirmed.
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