March 2009

Judge David F. Hamilton

Judge David F. Hamilton

By: Brian Sikma

Without a doubt one of the most contentious issues of President Bush’s two terms in office was his appointment of various individuals to serve in the federal judiciary. In Article 2 Section 2 of the Constitution of the United States, the President is awarded the power to appoint judges to the federal judiciary. When this power is viewed in light of the doctrine of judicial review, the reasoning that justifies the power of the courts to overturn laws passed by Congress and regulations imposed by the Executive Branch if they are found to be un-constitutional, the power of judicial appointment is understood to be one of the more important roles that a President fills.

Since the inception of the federal judiciary, federal judges and justices have had to wrestle with a number of disputes over the meaning, purpose, and intent of the Constitution, various federal laws, government regulations, and treaties that have been ratified by the United States. Their job has not always been a high-profile one, but perhaps since the uproar over President Franklin Delano Roosevelt’s “court packing” scheme in the 1930s, their time in the limelight has grown. This increased attention has also come about as a result of some of the more activist decisions that have been handed down in opinions since the middle of the 20th Century.

Because a judge on the federal bench today will probably at some point hear crucial cases relating to abortion, same sex marriage, 2nd Amendment rights, interstate commerce, religious liberty, and even property rights (recall the Kelo v. City of New London decision that touched off a firestorm of controversy over eminent domain), and because judges are appointed for life, their nomination has become a rigorously public and political affair.

President Bush frequently chose to nominate individuals to the federal judiciary who embraced an originalist interpretation of the Constitution and who viewed their prospective role as one in which they should enforce the law and uphold the Constitution, not twist it to fit a convoluted yet politically correct way of interpretation. The vast majority of them believed that, whatever their personal political preferences, it was the job of legislators, executives and citizens to work together to change the law. They did not find rights to abortion, same-sex marriage, unrestrained eminent domain, or affirmative action in the Constitution.

Yet it was often because of these beliefs in a restrained and limited judiciary that led liberal groups and liberal senators, including the current President, to vehemently oppose the nomination of judges like Charles Pickering (who went unconfirmed), John Roberts, Samuel Alito, and Janice Rogers Brown. These individuals were viewed as “dangerous” and a “menace” to the Constitution and to the freedom that we enjoy because they were not active enough to legislate from the bench. It is odd when those who refuse to distort the power of their office are deemed dangerous, but those who stop at nothing and from time to time use international law as a justification for superseding the plain meaning of our Constitution are hailed as champions of liberty.

Although the days of the fighting over President Bush’s judicial nominees are over, President Obama re-entered the judicial nominee fray in a different role on March 17 when he made his first judicial nomination. Since he is a former Constitutional law professor and liberal Senator who had the chance to vote on judicial nominations in the Senate, it was not hard to guess what sort of judges and justices President Obama would nominate.

In nominating Judge David F. Hamilton to the 7th Circuit Court of Appeals, President Obama solidified what many had already suspected about his approach to the judiciary. Judge Hamilton has served as the Chief Judge for the Federal District Court of the Southern District of the State of Indiana and in that capacity he has earned a reputation that runs counter to the flowery rhetoric that is now used to describe his temperament and qualifications.

Judge Hamilton drew the ire of many Hoosiers and a sizeable number of Indiana state legislators when he ruled in 2005 that prayers before the Indiana House of Representatives must not contain the words “Jesus Christ” or any other phrase that refers to the Christian faith. In a poorly researched opinion that relied on an amateurish ignorance of controlling precedent, he made it clear that prayer was allowed so long as it was to a vague, God-like figure that was not affiliated with any particular faith. Prayers that were clearly affiliated with non-Christian faiths were allowed to proceed.

Two years before his ruling imposing a gag order on the Indiana House of Representatives’ opening prayers, Hamilton struck down a state law requiring women seeking an abortion to be provided with information 18 hours before the abortion by either the doctor or staff regarding alternatives to abortion. The law did not seek to eliminate abortion, it only sought to make sure that women preparing to undergo a very serious medical procedure with important psychological consequences were aware of the fact that they do not have to kill their unborn child to deal with the situation.

Tellingly, the 7th Circuit Court of Appeals-the very court Hamilton has been nominated to serve on-has found occasion to do damage control and reign in his aggressive rewriting of the Constitution and legal precedent. Now that he will be sitting on the court that has often overturned his judicial misbehavior, he is in a position to support activist judges like himself who are working hard at the federal district court level in Indiana, Illinois, and Wisconsin.

In an attempt to set a bipartisan tone for his first judicial nomination, President Obama noted that he made his decision in consultation with Indiana Senators Evan Bayh (D) and Richard Lugar (R). Both senators indicated their support for the nomination. It is to be expected that Sen. Bayh would support Hamilton since he held an official position in the 1990s in then-Governor Evan Bayh’s administration. However, Sen. Lugar’s support for the choice is deeply unfortunate and greatly disappointing. Sen. Lugar should have already known that Judge Hamilton does not have a record of service indicating a qualification to serve at a higher level in the judiciary.

Both of Indiana’s Senators could have, and should have, chosen to quietly set aside the politics of perceived bipartisanship and opposed this nomination on the grounds that Judge Hamilton did not serve his office well when he used his power to impose on the people of Indiana a very twisted and misunderstood view of the Constitution. Hoosiers know that Judge Hamilton’s record is not one marked by wisdom, sound judgment, and a solid legal philosophy. Now it’s up to the Senate to learn that lesson too.


By: Brian Sikma

The recent, and ongoing, debate over the future of the Washington D.C. school voucher program has served as a high profile reminder that efforts must continue to be made to improve the quality of education provided by public schools.  Here in Indiana, the House has passed a bill that has the potential to lower the quality of education in this state and increase the administrative workload facing school districts.  The bill deals with creating “cultural competency” standards and protocols for schools around the state and has been sponsored by Rep. Greg Porter (D-Indianapolis).

Cultural competency is often defined as understanding the differences in action, behavior, and communication that span across various cultural and social groups.  If one is able to take this understanding and act in ways that are consistent with an increased awareness of these differences, they can be considered culturally competent.  To bring it to the practical level, if one is to be culturally competent they must be willing to adjust their actions based on the culture they are dealing with and, by extension, they emphasize the fact that differences between the two groups exist.

Cultural competency is good for diplomats.  It is not good for Indiana’s teachers and students.  By requiring school districts to develop programs to train teachers in cultural differences, set benchmarks for culturally competent behavior, and implement a system that monitors the cultural competency of teachers, we are shifting our focus away from the proper goal of classroom instruction: educating students in a way that stretches them academically and prepares them to become successful individuals and good citizens.  We should not turn the focus of classroom instruction into understanding the varying degrees of differences that we have with one another.

Teachers do need to be aware of the different socio-economic backgrounds that their students come from.  Yet this understanding should not be translated into a mandate that classroom education be reduced to a number of different individual standards with each student being held to his or her own level of accountability.  Our teachers should have the freedom to hold all students accountable for their actions and demand that each student do their very best in class.  Not all students will be at the top of the class, but by excusing lack of effort, inattention to instruction, or other behavioral issues by ascribing them to the cultural background of the student, we are sending the message that because of one’s background they will not be expected-or encouraged-to achieve great things.

Tailoring an educational program, whether in the individual classroom or throughout an entire school, to meet the needs of individual students is appropriate.  However, substantially altering the program to consciously emphasize the cultural differences between students or between student bodies across the state would not be the right thing to do.  Emphasizing, either explicitly or implicitly, what issues divide us does not make for an educational process that prepares students to be well equipped to join a society founded on a unity of beliefs and ideals with regard to responsibility and freedom.

Some have expressed concern that cultural competency will turn into a round about method of indoctrinating Hoosier school children with moral and social values that are not consistent with the values held by a majority of Hoosiers today.  This concern is a valid one because this result would occur if educators were required to not only acknowledge but also emphasize and encourage students to accept behaviors such as same-sex marriage and adoption. In the name of teaching students to accept diversity (which, when properly understood is a good thing), other states have had this very thing take place.

Indiana’s educators should not overlook or ignore the broad variety of cultures that have come together to make Indiana what it is today.  Yet as our state moves forward we must keep in mind that the secret to our past ability to assimilate various cultures into the fabric of our state’s society today is that we emphasized the ideas that united us as Americans and as Hoosiers.  Immigrants to our country have long recognized that it is not a common race or ethnicity, economic occupation, social status, or even intellectual ability that has brought us together as a people.  It has been our common commitment to a shared set of values, visions, and responsibilities that has created the rich tapestry of our history.

The future of the next generation of Hoosiers is too bright and too brimming with potential to waste in the shallow demands of the bureaucratic do-goodism known as cultural competency.  Young Hoosiers should be aware of the differences that they have with others, but they should be educated by teachers and an education system that focuses on what unites us and does not excuse a lack of effort in the name of a political correct form of condescension.

Pres. Obama and Sen. Bayh

Pres. Obama and Sen. Bayh

By: Brian Sikma

Indiana Senator Evan Bayh (D) has long been perceived as a moderate Democrat with conservative fiscal leanings.  His opinion editorial in the Wall Street Journal on March 4 helped reinforce this perception.  Titled “Deficits and Fiscal Credibility“, the op-ed made an excellent case for why President Obama should refuse to sign the $410 billion omnibus spending bill that takes care of unfinished spending business from last year.

Critics of the omnibus spending bill have pointed out that it grows the budgets of various government agencies and departments by about 8% and includes nearly 9,000 special interest “earmark” projects.  At a time when American families and businesses are trimming their budgets to reflect the realities of the economic downturn, the federal government should not be expanding the budgets of various agencies and embarking on the fulfillment of a 9,000 item goodie list that bails out special interests and leaves Americans holding an empty bag.

Some may say it took a certain level of political courage for Senator Bayh to urge his fellow Senators to vote against a bill heavily supported by his Party’s leadership in the House and the President of his own party.  The issuing of a direct challenge to the president to live up to the hope filled promises of the campaign trail by vetoing the bill was certainly a welcome development, but a closer look at Senator Bayh’s record and recent history illustrates a problem not with the message, but with the messenger.

As Senator Bayh argues for credibility in Washington on fiscal matters and the deficit, his record in the days leading up to the op-ed’s publication illustrates a deficit of credibility on his part.  Just 19 days before issuing his call for fiscal discipline, Senator Bayh voted in favor of H.R. 1, the President’s $790 billion economic stimulus plan.  The real cost of the plan runs well over $1 trillion by the time you add in the interest that will accrue from the new debt that will have to be issued to cover the spending spree.

Voting in favor of a $790 billion stimulus bill that is not timely, targeted, or temporary, (to paraphrase the advice of one the President’s own economic advisors) is not an exercise in fiscal discipline.  Nor is it an exercise in political courage for Senator Bayh to carefully dust off his conservative credentials just before a potentially heated re-election campaign in 2010.

To eliminate this credibility deficit, Senator Bayh and lawmakers like him who talk the talk but fail to walk the walk need to begin acting on their stated principles and not just talking about them.  Voting for bailouts and stimulus bills and then turning around to seize the high ground against a spending package with misplaced priorities is not what constituents need.   The American people deserve to be served by leaders who understand that wasteful government spending is always bad, no matter how distant or how close the next election may be.

By: Brian Sikma

In order to be mainstream and successful, American political candidates and office holders must profess a strong faith in freedom and declare in resounding terms their belief in the idea and principle of liberty.  Yet often two very different understandings of freedom seem to be present when opposing sides, the right and left, offer their policy proposals to the American people.  Not every opposing, or competing, set of solutions or proposals find themselves rooted in two distinct understandings of freedom.  But often enough it is quite clear that although two very different policies are advocated for with the same language of freedom, it is not possible for the advocates to be sharing the same understanding of that principle.

As our nation continues to struggle economically, the economic and fiscal proposals outlined by President Obama and the Democrats in Congress on one hand, and House Republicans and conservative thinkers on the other hand, give us an insight into the ramifications of competing understandings of freedom.  Although both sides offer us their plans by saying that they are consistent with freedom, it could well be that each side is talking past the other by agreeing on the terminology but not sharing in the same definition.

It is not possible for a plan that involves stimulus plans that must be paid for either by debt or higher taxes, and arbitrary bailouts that are sometimes forced on companies and give the federal government the power to pick winners and losers in the private sector, to be consistent with freedom when freedom is understood to mean the liberty to pursue one’s own choices consistent with a moral order.  Freedom of opportunity and the freedom to rise to one’s full level of potential and meet one’s own destiny requires that government not interfere with and over regulate individuals as they pursue this goal.  Freedom is not a right to do whatever you want to do, it is a right to do what is right.

Those who advocate for stimulus plans, bailouts, and bigger government do not share this view that freedom means freedom of opportunity and the freedom to live up to one’s potential.  In their view, freedom means being free from certain pressures and restraints like individual responsibility and fiscal discipline.  It means an equality of outcomes regardless of the varying levels of investment put in by different people.  It means that we have a “freedom” to achieve the same level of subsistence, no less, and certainly no more.  Using your talents and work ethic to get ahead, to set goals for yourself, and to achieve great things and improve the lives of those around you is not allowed under this very narrow view of freedom.  Just as this view removes the pressures of risk and limits the level of responsibility one must assume, it also imposes a firm and unyielding ceiling on what individuals can do.

When government turns the right of opportunity into a “right to succeed” it must impose a basic floor that allows everyone to have equal, or nearly equal, resources and assets.  But whenever a floor is imposed, whenever a basic minimum of tangible assets is determined to be a right, there is also a cap and a limit imposed on how far one can rise above the mandated minimum.  If failure is unacceptable or even illegal, so is success.

To apply these two distinct understandings of freedom to an issue, let’s consider the matter of Fannie Mae and Freddie Mac. To the left, these entities were expanding freedom by making home ownership more accessible and more common by relaxing credit standards and encouraging-and in some cases mandating-that lenders make loans to individuals who would have normally been denied a loan. The program was a success at expanding “freedom” because it resulted in more Americans owning homes, never mind the fact that it did so by placing them in homes that they could not afford and put a tremendous amount of stress on the mortgage industry.

Conservatives viewed Fannie and Freddie as antithetical to freedom because they coerced banks and other lenders to make loans to people who’s financial standing was not yet strong enough to sustain a mortgage, even a modest one. They believe that lenders and their depositors should be free to decide how much risk they want their assets to assume as part of an investment.

If you work for your assets, then you should have some say in how those assets are maintained and invested. The theory of owning your own property actually means something to conservatives.

This does not mean that conservatives mean that people should not be able to obtain mortgages and start on the path of home ownership.  It does mean that conservatives want people to be responsible enough to work hard and earn the status of home ownership, not be handed the opportunity at the expense of someone else’s success.  People value what they earn, and they take care of what they work for.

To the left, freedom means helping people “get ahead” even when that means mandating that other people act against their own interest and against the best interest of the system (in the case of Fannie and Freddie, the loan and mortgage system). To the right, freedom means giving people the opportunity to actually own what they own, and have the ability to pursue upward mobility and set and achieve personal goals-be they educational, financial, or something else-without the government telling them what they can and can’t do.

As the American people sort through the speeches, proposals and actions that surround the debate over the economy and what to do about it, they should bear in mind these two very different interpretations of freedom.  One definition was realized in the founding of our country, with the seeds of this mature tree being planted long before 1776.  The other definition has been around for some time, too.  It has not always been labeled freedom, but well meaning and yet misguided individuals have often tried to persuade people that equal outcomes, and the comfortable chains of paternal government, are the highest form of liberty.  Philosophers can hold either view and harm few, government leaders can hold only one view and be serving the best interest of the people.

In order to survive this economic downturn and climb out of this economic morass and return to the upward leading road of economic prosperity, the American people will need to stand and let their leaders know that while some government action is necessary and warranted, a far reaching expansion of government’s role in business, finance, and personal economic choice will not be tolerated.

The freedom of our founding is not an easy freedom.  It is only worth something to vigorous, rugged, rough and tumble people.  It does not prevent failure, but it does allow for unparalleled  success and it does allow you to work hard, earn, save and invest and own your own property and prosperity.  It allows you to fulfill your own destiny and help your community as you see fit.  We are Americans, and we have chosen true freedom in the past and we must do so again today.

By: Brian Sikma

It appears that now you can have the “perfect” baby as far as appearances are concerned as a result of work done at a Los Angeles fertility clinic.  Doctors at the clinic are using medical procedures that have been around for awhile they say to manipulate embryos and obtain the “right” combination of genes needed to get a specific hair or eye color or skin tone.  The corresponding cost of this manipulation is the creation of more embryos than are normally necessary for IVF.

The unethical creation of multiple embryos for experimentation is not the only thing that is disturbing about this new practice.  Encouraging parents to chose only those children that have the “perfect” combination of eye, hair and skin colors and tones overlooks the basic fact that a person’s identity is not bound up in the way they look.  Perhaps we should not be surprised that designer babies are being promoted as a good thing when for years we’ve been led to believe that looks matter more than character, the outward appearance and attractiveness more than the inward person.

It wasn’t all that long ago that a man stood at the Lincoln memorial and declared that he longed for a day when his children would be judged by the content of their character not the color of their skin. It appears that now that we have the technology to determine the color of one’s skin, to some extent, we are interested in abandoning ethical moors and running down a steep incline that leads into a morass of unwanted embryos and nascent human beings discarded because they didn’t have the genetic make-up that would yield the desired look.

Since Darwin developed the theory that some members of the human race were less human because they were less evolved, elements of mankind have struggled in some form or another to eliminate less desirable looking human beings in favor of those that supposedly look better.  That ghastly reasoning led in part to Hitler’s concentration camps and is being accepted in rough premise form at this fertility clinic in Los Angeles. Certainly the process is not as gruesome, but the ethical justifications behind each act are roughly parallel.  We should not seek to create and sustain only those human beings that meet our personal standards of beauty or good looks.

A child is not a play thing of it’s parents, it is a separate human being and entitled to full dignity as such.  This is not to say that parents do not have a right to raise that child the way they believe is proper, but it is to say that society should not view children as something to be toyed with and “designed” according to the whims of personal preference.

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