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.