by Judith E. Schaeffer, Vice President, Constitutional Accountability Center

In a recent letter to his colleagues, Senator Jeff Sessions (R-AL), Ranking Member of the Senate Judiciary Committee, accused David Hamilton, a federal District Court Judge in Indiana who has been nominated to the U.S. Court of Appeals for the Seventh Circuit, of being a judicial activist who has “used his position as a district court judge to drive a political agenda.” In fact, Sessions claims that Hamilton’s nomination is one of those “extraordinary circumstances where the President should be informed that his nominee is not qualified,” a not-so-thinly-veiled effort to signal support for a filibuster of Judge Hamilton’s nomination (despite all that talk by Republican Senators during the Bush Administration that filibusters of judicial nominees are improper if not unconstitutional).

These aggressive claims can’t be squared with Judge Hamilton’s unanimous rating of “Well Qualified” from the ABA — the highest possible rating — or with his strong support from his two Indiana Senators, including Richard Lugar, the most senior Republican in the Senate, and his support from the President of the Indiana Federalist Society.  So how does Senator Sessions justify these claims?  By distorting the Judge’s record and drawing unfair implications, that’s how.

We’re hardly the only ones who think Senator Sessions is off the mark here.  Indeed, according to a recent press report, Peter Rusthoven, a Republican attorney in Indiana who once worked for the Reagan Administration, has sent Senator Lugar a “detailed memo” containing a “point by point rebuttal” of Sessions’ charges.   Rusthoven’s memo, apparently, is not public, but Judge Hamilton’s record is, and an examination of that record readily reveals the flaws in Senator Sessions’ letter.  Here are some highlights, after the jump:

• Wrongly implying that Judge Hamilton believes that judges have the power to “amend the Constitution or write footnotes to it”

For this charge, Senator Sessions has contorted a post-hearing written exchange between Senator Hatch and Judge Hamilton by paraphrasing the first question Senator Hatch posed to Judge Hamilton, then quoting from Judge Hamilton’s answer to Senator Hatch’s second question.  In fact, Judge Hamilton expressly stated in response to Senator Hatch his belief that “constitutional decisions must always stay grounded in the Constitution itself.  In my view, judges do not ‘add’ footnotes to the Constitution itself. They apply the Constitution to the facts of the particular case and add to the body of case law interpreting the Constitution.”  In a response directly to Senator Sessions, Judge Hamilton stated plainly: “I believe the constitutional decisions I have made have been consistent with the express language and original intent of the Founding Fathers.”

• Wrongly implying that the Court of Appeals disagreed with a ruling by Judge Hamilton prohibiting sectarian prayer by the Indiana House of Representatives, and wrongly implying that Judge Hamilton (the son of a Methodist minister, by the way) is hostile to Christianity

Senator Sessions claims in his letter that “[i]n Hinrichs v. Bosma, 400 F. Supp. 2d 1103 (S.D. Ind. 2005), Judge Hamilton prohibited prayers in the Indiana House of Representatives that expressly mentioned Jesus Christ as violative of the Establishment Clause, yet he allowed prayers which mentioned Allah.  The Seventh Circuit reversed his ruling.”

The distortion here is a Double Whopper (hold the cheese).   In Hinrichs, Judge Hamilton, applying Supreme Court and appellate court precedent, held that the practice of the Indiana House of Representatives of offering sectarian prayers violated the Constitution.  The clear implication of Senator Sessions’ second sentence is that the Seventh Circuit disagreed with Judge Hamilton’s ruling.  To the contrary, the Court of Appeals noted that while it had not yet had the occasion to “address[] the constitutionality of legislative prayer,” Judge Hamilton’s decision was consistent with the decisions of other federal circuit and state courts that had.  Hinrichs,  440 F.3d 393 (7th Cir. 2006).  Subsequently, in light of an intervening Supreme Court ruling that narrowed taxpayer standing in Establishment Clause cases, the Seventh Circuit reversed Judge Hamilton’s ruling solely on the issue of standing, never disagreeing at all with Judge Hamilton on the merits as Senator Sessions suggests.

Senator Sessions is equally incorrect in implying that Judge Hamilton somehow discriminated against Christianity in his ruling.  In fact, as Judge Hamilton plainly stated in a subsequent order in the same case, his injunction was
not limited to sectarian Christian prayers, either by its terms or its reasoning.  The court focused its findings and conclusions on Christian prayers, of course, because the evidence here shows a pattern of Christian prayer . . . The constitutional principles, however, apply to a government endorsement or promotion of any religion.
Hinrichs, 2005 WL 3544300 (S.D. Ind. 2005), at * 5 (emphasis in original).  As Judge Hamilton noted, “Allah” is the Arabic word for “God,” and a prayer to God, in whatever language, presents “little risk that the choice of language would advance a particular religion or disparage others.”  At the same time, Judge Hamilton cautioned that “If and when the prayer practices in the Indiana House of Representatives ever seem to be advancing Islam, an appropriate party can bring the problem to the attention of this or another court.”  Id. at *7.

• Wrongly implying that Judge Hamilton is hostile to religion generally

According to Senator Sessions, “in Grossbaum v. Indianapolis-Marion County Building Authority, 870 F. Supp. 1450 (S.D. Ind. 1994), Judge Hamilton denied a Rabbi’s plea to allow a Menorah to be part of the Indianapolis Municipal Building’s holiday display. The Seventh Circuit unanimously reversed, finding that Judge Hamilton failed to acknowledge the Rabbi’s right to display the Menorah as symbolic religious speech protected by the First Amendment.”

At issue in Grossbaum was the policy of a government building authority prohibiting seasonal religious displays in the lobby of its own building.  As the Seventh Circuit itself recognized, ruling on the constitutionality of such a policy presented the difficult determination of whether the policy constituted impermissible “viewpoint discrimination” or whether it was a permissible government regulation of the subject matter of displays in a government building.  In the light of the facts and existing precedent, Judge Hamilton concluded that it was the latter.  After he ruled, the Supreme Court issued a decision in a different case that provided additional guidance on the application of the Free Speech Clause to religious speech.  Senator Sessions not only ignores that intervening ruling but also the fact that the Seventh Circuit, in reversing Judge Hamilton’s decision, expressly stated that Judge Hamilton had “act[ed] without the benefit of the Supreme Court’s recent guidance in this area.”  Grossbaum,  63 F.3d 581, 582 (7th Cir. 1995).

• Wrongly implying that Judge Hamilton is a judicial activist because he believes in “empathy”

Not surprisingly, Senator Sessions has played the “E” word — empathy — used by President Obama to describe an important quality he is looking for in his judicial nominees, but seized on and misused by political opponents seeking to falsely brand his nominees as activists.  Empathy, as the President has correctly used the term, and as Judge Hamilton likewise describes it, means “the ability to understand the world from another person’s point of view.”  Here, while Senator Sessions correctly notes that Judge Hamilton, like the President, believes in the importance of “empathy,” the Senator significantly omits from his letter the fact that Judge Hamilton has plainly stated that, as a judge, “I make decisions based on the facts and applicable law of each case.”  Judge Hamilton has also cautioned that “Empathy should not be confused with sympathy for one side or another, which has no role in the process.”  See, e.g., Responses of David Hamilton to the Written Questions of Senator John Cornyn.

It’s very easy to call David Hamilton an activist judge with “a political agenda,” but impossible to do so without distorting his record.  We hope that other Senators, entrusted with a constitutional obligation to examine Judge Hamilton’s record fairly, will come to the same conclusion.