GOP Slows Noncontroversial Judicial Votes

Posted December 9, 2009 at 3:19pm

When Barack Obama took the oath as president in early 2009, the United States courts of appeals had vacancies in 14 of its 179 judgeships. The White House knew that promptly filling these openings was crucial and instituted special practices to facilitate appointments, pledging to halt the “confirmation wars— that have troubled selections in the past.

Thus, Obama was extremely careful to guarantee that his initial nominee, District Judge David Hamilton of Indiana, was highly qualified. Notwithstanding those efforts, many Republican Senators expressed opposition to Judge Hamilton. Because the jurist is smart, ethical, industrious and independent and has a balanced temperament, it was fitting that the Senate confirmed Judge Hamilton on Nov. 17, eight months after his nomination.

The 7th Circuit, which decides 99 percent of cases from Indiana, Illinois and Wisconsin, needs all 11 of its authorized judgeships to swiftly, economically and fairly conclude appeals. For example, the tribunal now affords the highest percentages of oral arguments and published opinions, which are significant yardsticks of appellate justice, but are quite resource-intensive.

Obama relied on several measures to expeditiously fill the 7th Circuit opening created when Judge Kenneth Ripple assumed senior status. The president quickly consulted the home-state Senators prior to officially nominating. He sought the guidance of Indiana Sens. Evan Bayh (D) and Dick Lugar (R), who enthusiastically supported Judge Hamilton. Obama nominated the jurist on March 17, and the Senate Judiciary Committee granted him an April 1 hearing.

When GOP Members claimed that conducting the hearing two weeks after nomination gave them too little preparation time, Sen. Patrick Leahy (D-Vt.), the Judiciary panel chairman, quickly scheduled another hearing for April 29. The committee approved Hamilton 12-7 on June 4. Senate Majority Leader Harry Reid (D-Nev.) filed a cloture motion more than five months after the panel had approved the jurist. The Senate voted for cloture 70-29 on Nov. 15 and 59-39 to confirm Hamilton two days later.

The White House selected Judge Hamilton as the first nominee because he had compiled a superb record as a district judge. The American Bar Association assigned Hamilton its best rating, well-qualified. The president of the Indianapolis chapter of the Federalist Society, a conservative legal group, lauded the nomination: “I regard Judge Hamilton as an excellent jurist with a first rate intellect.—

However, GOP Members criticized Judge Hamilton. For example, Sen. Jeff Sessions (Ala.), the ranking Judiciary Committee member, asserted that “President Obama chose to set an aggressive tone by nominating Judge David Hamilton, a former board member and vice president for litigation of the Indiana chapter of the ACLU, as his first nominee.— Moreover, Sessions claimed his “nomination is clearly controversial,— arguing that Hamilton has “drive[n] a political agenda,— embracing the “empathy standard [and] the idea of a living Constitution.— Representing or being a member of groups such as the American Civil Liberties Union and the Federalist Society, or writing some decisions with which Senators disagree should not automatically disqualify candidates for nomination or confirmation.

Judge Hamilton’s excellent record of service on the federal bench led the Senate to cut off debate on the jurist’s nomination by a substantial majority and confirm him in mid-November. Filling Judge Ripple’s seat was important because the 7th Circuit requires all of its members to deliver appellate justice.

Carl Tobias is the Williams professor at the University of Richmond School of Law.