(CNSNews.com) – Republican Sen. Jeff Sessions (R-Ala.), the ranking Republican on the Senate Judiciary Committee, said Monday he plans to filibuster President Obama’s first judicial pick, Judge David F. Hamilton.
Sessions told reporters in a briefing that he will vote “not to consider” the nomination.
“I think I intend not to support going forward (with) Hamilton’s vote,” Sessions said, adding that each senator has to vote his own conscience.
Senate Majority Leader Harry Reid (D-Nev.) has called for a cloture vote on the nomination Tuesday, which would force the Republican filibuster of Hamilton, whom Obama indicated is the kind of nominee he wants on the appeals court.
“Judge Hamilton has a long and impressive record of service and a history of handing down fair and judicious decisions," President Obama said in making the appointment. "He will be a thoughtful and distinguished addition to the 7th Circuit."
Hamilton, a federal district court judge in Indiana’s Southern District, was nominated on March 17 to the Seventh Circuit Court of Appeals in Chicago and approved by the Judiciary Committee in June on a 12 -7 vote. His nomination has support on both sides of the aisle.
He is currently waiting for an up-or-down vote in the Senate.
Before Hamilton’s nomination can receive an up-or-down Senate vote, however, there most be a cloture vote on whether to consider him, which must garner a 60-vote majority. That vote is expected to happen on Tuesday.
Sessions said that Republicans and Democrats had hammered out “new rules” during the George W. Bush administration about when a filibuster would be allowed on appellate nominees, but those rules still allowed a filibuster in “extraordinary circumstances.”
In an Oct. 30 letter to his Senate colleagues, Sessions accused Hamilton of being a judge who was working to “advance a political agenda” – and said several of the judge’s decisions amounted to judicial “activism.”
In the letter, obtained by CNSNews.com, Sessions said: “This is one of the extraordinary circumstances where the president should be informed that his nominee is not qualified.”
Hamilton’s tenure on the bench “is not the type of service that should be rewarded with a promotion,” Sessions added.
According to the exhaustive questionnaire the nominee completed for the Senate Judiciary Committee, Hamilton has been on the district court since 1994, and served as counsel to Democratic Indiana Gov. Evan Bayh from 1989 to 1991.
But he began his career, as a fundraiser for the Association of Community Organizations for Reform Now (ACORN) in 1979 and served on the board of the Indiana Civil Liberties Union in 1987 to 1988.
Sessions says Hamilton’s “activist” decisions included one that allowed a pornographic video store to operate near a church, contrary to Indiana statute, and a decision to keep the Speaker of the Indiana Legislature from allowing prayers that end “in Jesus’ name” from being offered at the start of sessions of the Indiana Assembly.
The Alabama Republican, in a document prepared by the committee’s Republican staff, charged that Hamilton had “blocked enforcement of an Indiana law that barred the sale or display of sexually explicit material within 500 feet of church or school.”
In Video-Home-One Inc v. Brizzi, the owner of a video store that included a section with sexually explicit material asked the federal judge for a temporary restraining order to keep an Indiana statute from being enforced. The statute requires that sexually explicit material not be within 500 feet of a church.
Hamilton sided with the video store owner over Marion County Prosecutor Carl Brizzi because he said censoring the X-rated videos would “survive First Amendment scrutiny” only if enforcing the Indiana statute would reduce the “secondary effects of legal sexually-oriented businesses,” which he said included “neighborhood crime, prostitution, reduced property values, the spread of pornographic litter, harassment of citizens by adult entertainment clientele, and increased incidences of sex offenses.”
Hamilton said that the “burden is on the state or local government to come forward with evidence” of such effects, otherwise, enforcing Indiana’s 500-foot rule could not by justified under the First Amendment.
“At this early stage in this lawsuit, the state has not met this evidentiary standard,” Hamilton wrote, granting the TRO blocking the law from being enforced.
In another case, Hinrichs v. Bosma, plaintiff Anthony Hinrichs and others alleged that Speaker of the Indiana House Brian Bosma had violated the Establishment Clause of the First Amendment because the majority of prayers said as invocations opening House sessions were Christian.
In his opinion, Hamilton ordered Bosma not to allow the use of sectarian prayers or of “Christ’s name or title” in statehouse prayers. The case was brought by the Indiana Civil Liberties Union. (Read the Decision:
In an April 17 interview with Christianity Today, former U.S. House Speaker Newt Gingrich alleged that Hamilton had ruled that “saying the words Jesus Christ in a prayer is a sign of inappropriate behavior, but saying Allah would be OK.”
Sessions said Hamilton “allowed prayers in the House chamber if they were to ‘Allah.’”
Though Hamilton did not actually use the word “Allah” in his original decision, he did say (on page 49) that the only reason he was not restricting prayers of other faiths was because he had not been specifically asked about them.”
“The same strictures will apply to sectarian Jewish or Muslim prayers, for example,” Hamilton wrote. “This record, however, shows no efforts by Jewish or Muslim clerics to use the prayer opportunity to advance their particular religions,” Hamilton wrote. “At this juncture there is no need to be more specific in the injunction as to what would amount to a sectarian prayer in those traditions.”
In a response to Hamilton’s decision, Speaker Bosma noted that the court-imposed censorship of prayers was “intolerable.”
“I find the Court's unprecedented decision disturbing in that it directs me, as Speaker, to advise people that they are prohibited from using ‘Christ's name or title or any other denominational appeal’ when offering the invocation in the Indiana House of Representatives. It is intolerable that a court in this free society would ask a person to censor the prayer they offer in the tradition of their faith,” Bosma said.
Sessions’ letter, meanwhile, also complained that Hamilton “abused his lifetime appointment to block the carrying out of a state law for 7 years, depriving the people of Indiana of their domestic and Constitutional rights until being slapped down by the appellate courts.”
In A Woman’s Choice-East Side Women’s Clinic v. Newman, an abortion clinic and Planned Parenthood of Central and Southern Indiana challenged Indiana’s Public Law 187 on behalf of their patients seeking abortions. Public Law 187 is an informed-consent law requiring that women be given information about the procedure and other alternatives in person at least 18 hours before the abortion is performed.
Hamilton issued a temporary injunction barring enforcement of this law in 1995. (904 F. Supp. 1434 [S.D. Ind. 1995].
After he submitted questions to the Indiana Supreme Court for clarification -- and that court disagreed with part of his findings – Hamilton modified the injunction in 1997, explaining that, in his opinion the law would cause an “unconstitutional burden on a woman’s right to choose to have an abortion.”
“As a practical matter, that provision requires the vast majority of women seeking an abortion to make two trips to an abortion clinic,” Hamilton wrote.
“For many women that requirement would make abortion more expensive and less convenient, but it would not actually prevent them from obtaining an abortion. But for a significant fraction of women affected by the law -- especially those in abusive or potentially abusive relationships -- the requirement is likely to prevent them from obtaining abortions they would otherwise choose to have.” (980 F. Supp. 962 [S.D. Ind. 1997]).
Hamilton held an “informational hearing” which found that reduced numbers of abortions in other states with informed consent laws – namely Mississippi and Utah -- were evidence enough to support his theory and make the injunction permanent. (132 F. Supp. 2d 1150; 2001 U.S. Dist. LEXIS 7254).
The Seventh Circuit Court of Appeals, however, overturned Hamilton’s ruling, citing the fact that the U.S. Supreme Court and two other courts had upheld similar informed consent laws to be enforced.
“For seven years Indiana has been prevented from enforcing a statute materially identical to a law held valid by the Supreme Court in Casey, by this court in Karlin, and by the fifth circuit in Barnes, Circuit Judge Frank Easterbrook wrote.
“No court anywhere in the country (other than one district judge in Indiana) has held any similar law invalid in the years since Casey.” (7th Circuit, 305 F.3d 684; 2002 U.S. App. LEXIS 18840).
Several prominent conservatives including former Attorney General Edwin Meese released a memo on Nov. 9. imploring the Senate to reject Hamilton. The American Civil Rights Union (ACRU) document said that Hamilton’s “record demonstrates that he would decide cases on the basis of his politics and personal agenda instead of the Constitution.”
He “is precisely the kind of liberal judicial activist who would use our federal courts as his own super-legislature. The Senate should vote no on the cloture vote to stop this nomination.”
Sessions would need to pick up some non-Republican votes in order to defeat a cloture motion on Hamilton, as Democrats hold 60 seats including Sen. Joe Lieberman (I-Conn.), who caucuses with them.