Mounting Challenges to Judicial Nominations

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.

Similarly, comments by Magistrate Judge Chen are being used by Fox News and The Washington Times -- conservative media outlets -- "to smear him as a 'radical leftist' who 'doesn't appear to love America,' and as a 'biased radical' when, in fact, the quotes in question establish nothing of the sort," reports Media Matters for America. "These attacks on Chen follow months of a Fox News-led witch hunt against other Obama advisers and appointees, as well as race-baiting attacks on then-Supreme Court nominee Sonia Sotomayor."

Chen's nomination was also assessed by the San Francisco Chronicle this weekend. "In eight years as a magistrate, Chen has demonstrated his fidelity to the law, respect for judicial precedent and dedication to separating his personal beliefs from his role as neutral arbiter," wrote the Chronicle's John Diaz. "If daylight shines, he will become the first Asian American federal judge in Northern California."

While Magistrate Judge Chen still awaits his hearing before the Judiciary Committee, Judge Hamilton's nomination has already been forwarded to the full Senate where debate and a final vote remain unscheduled. For a full list of President Obama's judicial nominees and the state of their progress, click here. (H/T: Judging the Environment's Glenn Sugameli.)