Senate to Vote Thursday on Appeals Court Nominee Who Said Judges Can Amend the Constitution with Judicial ‘Footnotes’

By Christopher Neefus | November 18, 2009 | 5:22 PM EST

Judge David Hamilton (Photo Courtesy of U.S. Department of Justice)

( – U.S. senators on Thursday will debate and vote on the nomination of Judge David F. Hamilton, President Obama's first judicial nominee.
Hamilton, who would sit on the 7th Circuit Court of Appeals in Chicago if confirmed, has said his decisions as a federal judge can “amend” the U.S. Constitution by adding “footnotes” to it.
At the 2003 dedication of a U.S. courthouse in Indiana named after former Sen. Birch Bayh (D-Ind.), Hamilton quoted someone else's comment that judges write “footnotes.”
He told the audience: “Let’s start with the Constitution. Judge S. Hugh Dillin of this court has said that part of our job here as judges is to write a series of footnotes to the Constitution. We all do that every year in cases large and small.”
That judicial philosophy led Republicans on the Senate Judiciary Committee to question Hamilton at a rare second hearing on his nomination, held on April 29.
When Sen. Tom Coburn (R-Okla.) asked Hamilton what he meant by the statement, the judge told the senator: “(A)t least to me, the concept of a footnote implies what we’re trying to do is not something new but work out the details of how those principles apply to the new situations.”
But in an Oct. 30 letter to his colleagues, Sen. Jeff Sessions (R-Ala.), the Judiciary Committee's ranking Republican, said that Hamilton, in written answers to follow-up questions submitted by Sen. Orrin Hatch (R-Utah), had explained that making so-called footnotes to the Constitution was another means of amendment.
“Both the process of case-by-case adjudication and the Article V amendment processes are constitutionally legitimate and were both, in my view, expected by the Framers, provided that case-by-case interpretation follows the usual methods of legal reasoning and interpretation,” Hamilton told Hatch.
He qualified the statement by saying that if case law conflicted with an amendment made under Article V, “an amendment adopted under Article V clearly would take precedence over conflicting case law.
Sessions, in his letter to fellow senators, wrote: “This view evidences an activist judicial philosophy. Judges are not given the power to amend the Constitution or write footnotes to it.”

John Park, a visiting fellow at The Heritage Foundation, a conservative think-tank, agreed that Hamilton’s view of amendments was not constitutionally legitimate.
“The job of judges is to say what the law is and to apply it, not to make it or say what it ought to be,” Park told, “and I don’t think that the Framers expected that the process of case-by-case adjudication would represent amending the Constitution.”

President Obama originally nominated Hamilton on March 17, saying the judge had “a history of handing down fair and judicious decisions” and that Hamilton would set the tone for future nominations.

Said Park: “If this is setting the tone, that is by endorsing the notion that the process of case-by-case adjudication represents the legitimate process of amending the Constitution, I think it’s the wrong tone to be setting.”

In a written response to Sen. Coburn, Hamilton also endorsed the “empathy” position for which Supreme Court Justice Sonia Sotomayor drew criticism during her confirmation process. Hamilton, however, made the comments in a written response to a question from Coburn before “empathy” became a keyword in the debate over nominees.

Hamilton said: “A judge needs to empathize with all parties in the case -- plaintiff and defendant, crime victim and accused defendant -- so that the judge can better understand how the parties came to be before the court and how legal rules affect those parties and others in similar situations.”
In an attempt to filibuster the nomination Monday, Sens. Sessions and Coburn voted “No” on cloture, the motion to allow Hamilton to proceed to the floor, along with 27 other Republicans. Sen. Hatch and 9 other Republicans joined 59 Democrats and Sen. Joe Lieberman (I-Conn.) in voting “Yea.”
Debate will begin on Hamilton’s confirmation Thursday after a period of morning business in the Senate, followed by an up-or-down vote. 

Hamilton has served as a judge on the federal court in the Southern District of Indiana since 1994, and previously served as legal counsel to former Indiana Gov. – now senator -- Evan Bayh from 1989 to 1991.