Judicial Nominees

  • November 16, 2009
    Guest Post

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

    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.


  • November 4, 2009

    This morning, President Obama announced two more nominees to the U.S. Court of Appeals for the Fourth Circuit. North Carolina Judges Albert Diaz and James Wynn join Andre Davis, nominated April 29, 2009, and Barbara Keenan, nominated October 7 2009, in awaiting confirmation to the 15-judge circuit. Their confirmations would make a substantial dent in Fourth Circuit's the five vacancies.

    Judge Diaz, 48, currently serves as a Special Superior Court Judge for Complex Business Cases in Charlotte. He previously practiced commerical litigation after having served as a prosecutor, defense counsel, and ultimately Chief Review Officer in the Marine Corps for 25 years. Diaz would become the historically conservative court's first Latino judge.

  • November 2, 2009

    Storm clouds appear to be gathering over two of President Obama's judicial nominees facing what Professor Carl Tobias calls an increasingly tight "bottle neck in the Senate." Apparently added to the hit-list for those obstructing nominations are Judge David Hamilton, nominated to the U.S. Court of Appeals for the Seventh Circuit, and Magistrate Judge Edward Chen, nominated to the U.S. District Court for Northern California.

    Both Judges Hamilton and Chen are rated as "well qualified" by the non-partisan American Bar Association (ABA), which rates nominations to the federal bench. "Well qualified" is the highest rating provided by the ABA.

    As to Judge Hamilton, Senator Jeff Sessions disagrees with the ABA, having written a letter urging his colleagues to filibuster Hamilton's nomination. Sessions writes that Hamilton's nomination presents "one of the extraordinary circumstances where the President should be informed that his nominee is not qualified."

    Sessions, a failed nominee to the federal bench himself, is currently the ranking member of the Senate Judiciary Committee. Despite his central role in judicial nominations, filibustering Judge Hamilton's advancement to the Seventh Circuit may prove particularly challenging in light of the support for Hamilton's nomination from his home-state Senator Richard Lugar. That said, Lugar's support has yet to prove dispositive for another of Obama's legal nominees -- Indianan Dawn Johnsen, whose nomination to head the Justice Department's Office of Legal Counsel has languished for almost eight months.

    One of the charges being repeatedly lobbed at Hamilton's nomination is that he "ruled that praying to Allah does not violate the Establishment of Religion clause in the First Amendment, but praying in Jesus Christ's name does." This allegation was assessed by one observer last April who wrote, "it's all a lie, but ... I was surprised how despicably rancid a lie it it." The opinion at issue is in Hinrichs v Bosma, and is available here.

  • October 29, 2009

    "Today, Sen. Harry Reid (D-Nev.) made what I think is the hardest-edged, most direct and sustained criticism of the Republican minority's campaign of holds and filibusters on Obama administration and judicial nominees," writes Dave Weigel at The Washington Independent.

    Beginning with the hold on President Obama's nomination for Surgeon General, Senator Reid detailed a number of nominations subject to what one observer called "unprecedented" obstruction by senators seeking leverage on pet issues. Among those nominations still pending before the Senate are a number of Assistant Attorneys General, including that of former ACS board member Dawn Johnsen to head the Justice Department's Office of Legal Counsel.

    Of the nominations that were held up, but have since proceeded to the Senate floor, Reid stated, "When votes were finally called, they passed with flying colors: They passed with vote counts of 89-2, 97-1, 88-0 and 97-0. The numbers don't lie, and there's no clearer evidence that many of these objections are without merit.

    Reid did not hesitate to compare the pace of nominations in Obama's first year at the White House with those announced during the first years of the second Bush presidency:

  • October 13, 2009

    One court-watcher says that President Obama should be applauded for furthering judicial diversity. But wait, says another. 

    "Women and ethnic minorities have long been underrepresented in the federal judiciary compared with the U.S. population," notes Professor Carl Tobias in his recent National Law Journal op-ed heralding Obama's appointment of several women and jurists of color. "Eighty-four percent of federal judges are white. Female jurists comprise 20%. African-Americans constitute 8%. Out of the almost 1,300 sitting federal judges, a mere 11 are Asian-American and only one is a Native American. A significant percentage of the 94 federal districts has never had a jurist who is a woman or a person of color."

    Upon review of the president's nominations, Tobias concludes that "the chief executive deserves substantial credit for nominating large numbers and percentages of highly qualified, diverse candidates whom the Senate should promptly approve."

    Another observer argues that one form of diversity remains yet to be addressed by the president. At Sentencing Law and Policy, Professor Douglas Berman writes that there has been little diversity among the résumés of Obama's judicial nominees: