Judge David Hamilton

Today, the Senate voted for cloture 70-29 on the nomination of Judge David Hamilton to the U.S. Court of Appeals to the Seventh Circuit. Senator Jeff Sessions (pictured at right -- click to zoom) attempted unsuccessfully to lead a filibuster Hamilton, a federal district judge. 

Earlier today, The Washington Post published an editorial entitled "Giving Hypocrisy a Bad Name," saying, "We hope that Republicans in large numbers heed Mr. Lugar's words of praise for Judge Hamilton's record, intellect and character and allow a vote -- and then vote in favor of confirmation."

"In this instance, a vote for Judge Hamilton will be a vote to restore much needed comity and integrity to the process -- qualities that the next Republican president will greatly appreciate when his nominees are considered," observes The Post.

At Huffington Post, Sam Stein turns up a document from November, 2003, when President Bush was selecting the newest members of the federal judiciary, that offers further evidence of conservatives' change in approach. Stein highlights a white paper arguing that judicial filibusters are unconsitutional. The paper is produced by the Federalist Society, who Stein describes as "the crown jewel of the conservative legal movement."

For more than two centuries, an unwritten Senate rule against the filibustering of judicial nominees has reinforced the constitutional design of the judicial confirmation process. The recent break with this longstanding tradition has set a worrisome precedent that raises serious constitutional questions. By intruding upon the power constitutionally vested in the President to nominate and appoint federal judges, and upon the power of the Senate majority to consent to the President's nominees, judicial filibusters pose a unique threat both to the separation of powers and to the independence of the federal judiciary.

In the next few days, the Senate is finally expected to take up the nomination of Judge David Hamilton to the U.S. Court of Appeals for the Seventh Circuit. That's the same David Hamilton who was nominated way back in March, and who, in 15 years on the federal District Court in Indiana, has compiled a record so distinguished that his nomination to the Seventh Circuit has the enthusiastic support of both his home-state senators, including Richard Lugar, the most senior Republican in the Senate, as well as that of the President of the Indiana Federalist Society. Hamilton has also received the ABA's highest possible rating -- "Well Qualified."

With that kind of support, how is it that Hamilton - the president's first judicial nominee -- has not yet been confirmed? Well, as my colleague Doug Kendall has chronicled, some Republican senators are engaged in an unprecedented effort to block President Obama's nominees, no matter how qualified they may be, no matter their bipartisan support. Never mind that, during the last Bush administration, Republicans insisted that every nominee was entitled to an "up or down" vote, and threatened to go nuclear when Democrats filibustered the most extreme of Bush's nominees.

That was then. Now, escalating the efforts to block Judge Hamilton, already the longest victim of Republican stonewalling, Senator Jeff Sessions (R-Ala.), ranking member of the Senate Judiciary Committee, has sent a letter to his colleagues accusing Hamilton of being a judicial activist who has "used his position as a district court judge to drive a political agenda." Senator Sessions even claims that this is one of those "extraordinary circumstances where the President should be informed that his nominee is not qualified" -- in other words, that a filibuster is in order. 

Those are pretty strong words. The problem is they can't be squared with Judge Hamilton's record, as I've explained in greater detail here. On November 10, Majority Leader Harry Reid filed for cloture on Judge Hamilton's nomination; a vote on cloture could come as early as Tuesday. Hopefully, the Midwestern duo, Senators Evan Bayh and Lugar, who both know Hamilton well and can easily rebut Senator Sessions' distortions, will convince their colleagues that there is no basis, whatsoever, for a filibuster of David Hamilton.