President Obama’s nomination of David Hamilton to the Seventh Circuit Court of Appeals was, according to a senior administration official, “a kind of signal” of the types of nominees the president will choose. The “signal” is that the president is following the example he already set with his nomination of similar radicals like Dawn Johnson and Harold Koh to numerous posts in the executive branch. Thus, it was extremely disappointing when ten Republican senators voted with the Democrats to invoke cloture and deny Senator Jeff Sessions’ attempt to block consideration of Hamilton’s nomination. This allowed the nomination to go forward and he was confirmed 59 to 39.
The refusal of these ten Senators to support a filibuster brings to the fore the issue of how to handle the president’s nominations. It illustrates an unfortunate and profound difference in views about how to handle the president’s nomination of leftists like Hamilton.
There is no question that Hamilton, a former fundraiser for ACORN and board member of the ACLU, is a radical. He has plainly said that judges have the right to amend the Constitution by writing “a series of footnotes to the Constitution.” Hamilton believes judges have the ability to make the law and has demonstrated his determination to implement his own views on social issues instead of following the precedents of the Supreme Court. He was chastised by the Seventh Circuit for refusing for seven years to allow Indiana to implement an informed consent abortion law despite the Supreme Court’s approval of such laws. Even the ABA rated him as “not qualified” when he was first proposed for a federal district court judgeship. Yet Obama nominated a judge who thinks that “empathy” or outcome-based justice depending on the race, ethnicity, and gender of the parties before him in the courtroom is “important” in fulfilling a judge’s oath of office.
Many of the ten Republicans who voted to disapprove a filibuster of Hamilton did so because they do not believe the Constitution allows the Senate to engage in such behavior in its “Advice and Consent” role (although Senator Lugar believes Hamilton is “an exceptionally talented jurist” and was the sole Republican to vote for his confirmation). The constitutionality of that view is debatable, but even if it is correct, that rule should certainly not apply to someone who does not believe in the rule of law, the primacy of the Constitution itself, and the limited role of federal judges that is one of the lynchpins of our republic.