After surviving a Senate committee's party-line vote today, an Indianapolis-based federal judge must now get approval from the full U.S. Senate in order to move to the 7th Circuit Court of Appeals.
The Senate Judiciary Committee this morning voted 12-7 along party lines to favorably report U.S. District Chief Judge David F. Hamilton's nomination, which would move him from the U.S. District Court, Southern District of Indiana.
He is the first judicial pick made by President Barack Obama and is largely viewed as a test for how lawmakers will handle future nominees, particularly anyone considered for a seat on the Supreme Court of the United States. The significance of that was clear after today's executive business meeting, where senators spent about 30 minutes debating Judge Hamilton's nomination and broader judicial nominee issues before finally voting.
Republican senators voiced their fundamental disagreement with how the president views judicial nominees and particularly with his push for more "empathy" on the federal bench, while Democrats defended those views and referred back to past presidents' nominations and their overall views of the process. Some of the discussion related specifically to Judge Hamilton, some did not.
"Empathy doesn't decide cases; the law decides cases," Sen. Jon Kyl, R-Ariz., said. "There's always some authority, statute, or rule of construction that lawyers use. Every lawyer worth his salt has a statute or rule of construction to support his (or her) case. There's always a legal reason to rule, and you don't default to what's in your heart."
When committee chairman Sen. Patrick J. Leahy, D-Vt., tried to direct those and other statements to Judge Hamilton, Kyl responded: "I am not trying to filibuster Judge Hamilton. But we have to have this discussion. ... We haven't had a Circuit (judge) vote ... and I sense this will be something that comes up again and again," he said.
Other senators, including ranking Republican committee member Jeff Sessions from Alabama, noted that Judge Hamilton doesn't seem committed to following the law and seems more willing to allow his personal views to impact his rulings. They pointed to several of his decisions that have been reversed by the 7th Circuit, including one where he denied injunction to a Jewish rabbi who'd wanted to put up a menorah in the lobby of the City-County Building in Indianapolis.
Sen. Amy Klobuchar, D-Minn., defended both Judge Hamilton and the president's nomination statements.
"Every judge is going to have cases we disagree with, but you have to look at entirety of their judicial record," she said, pointing out that Judge Hamilton has the support of Indiana Republican Sen. Richard Lugar and that the head of the Indiana chapter of the conservative Federalist Society has called his judicial philosophy well within the mainstream.
Sen. Dianne Feinstein, D-Calif., accused Republicans of being hypocritical, turning empathy into the "Darth Vader of any judicial appointment," and orchestrating an effort to oppose anyone with compassion or a sense of mercy.
Responding, Sen. Tom Coburn, R-Okla., said, "I want a compassionate judge, but the dividing line is whether that empathy rules over what's clearly written. We see a level (of empathy) that denies certain functions of the law, or ignores them. We want compassion, but we want it applied evenly with the rule of law. That's where the rub is with Judge Hamilton."
Several senators weren't present at the hearing, but those attending voted by proxy in their names. With the committee reporting this nomination favorable, the full Senate will now get the nomination. There's no set timeline for a confirmation vote, but the Senate majority leader will be responsible for determining when that might happen.
If confirmed, Judge Hamilton would succeed Circuit Judge Kenneth Ripple who took senior status in September.