Thursday, November 19, 2009

Judge David Hamilton Confirmed To Seventh Circuit

U.S. District Court Judge David Hamilton has just been confirmed for a seat on the Seventh Circuit Court of Appeals by the U.S. Senate on a vote of 59-39 vote per the Indiana Law Blog. Here's the roll call vote. Sen. Richard Lugar (R-IN) was the only Republican who voted in favor of Hamilton's confirmation. Sens. Max Baucus (D-MT) and Robert Byrd (D-WV) did not vote.


artfuggins said...

All Hoosiers should be proud.

Unigov said...

Lugar = RINO

Blog Admin said...

Gary, I'd be interested to hear what you think. The most cited case the Senate GOP has problems with his his ruling on Christian prayer during state legislative sessions. I remember you being very critical of Bosma for even pursuing the case, but I don't recall your thoughts on Hamilton's ruling.

So your thoughts on Hamilton, both his nomination and his legislative opinions that the GOP cite as judicial activism?

Gary R. Welsh said...

I agreed with Hamilton's ruling at the time on the prayer case. After he made the ruling, there was a Supreme Court decision that altered the standing requirement in these cases, which is why the case got reversed. It was initially affirmed by an en banc panel and then reversed by the full circuit. I don't think that case represented judicial activism on his part based on the law that governed his decision at the time it was rendered.

Gary R. Welsh said...

Some people are lamenting the party-line vote. Recall that Barack Obama voted against all of Bush's judicial nominees simply because they were nominees of a Republican president.

Paul K. Ogden said...


I think Hamilton's decision on legislative prayer would have definitely been reversed regardless - standing was just the easy way out. Long story, but Judge Hamilton in his opinion singled out Christianity for special limits that he didn't apply to other religions. You just can't do that. You can't prohibit Christian legislative prayer from mentioning "Jesus Christ" while allowing a Muslim prayer to mention "Allah." Hamilton's decision was fatally flawed and wouldn't have passed muster even if it wasn't reversed on a technicality.

The whole conservative-liberal angle was overplayed with regard to Judge Hamilton. The are other reasons why even Democrats might have opposed Hamilton's nomination. His nomination should not have been turned into a simply liberal v. conservative thing. It was a lot more complicated than that.

IndyPaul said...

That would be false recall. Obama refused to join in several filibuster attempts and voted in favor of the vast majority of Bush nominees.

Gary R. Welsh said...

Paul & Paul, Hamilton had no problem with prayers invoking "God". The case should have nave never become an issue but for Brian Bosma's outrageous attempt to turn the House's daily prayer into an opportunity to proselytize his Christian views. The singing of "Take A Walk With Jesus" as part of the daily prayer went a little too far, don't you think?

And every major judicial appointment by Bush drew a negative vote from Obama.Let's not throw in all of the lower court judicial nominees, Paul.

Paul K. Ogden said...


I totally agree the prayers went too far. But in his opinion, Hamilton put a specific prohibition on mentioning "Jesus Christ" while there were not restrictions placed on mention other religious founders.

He needed to treat all religions equally. He didn't do that in his opinion.

I think actually there could be a separation of powers problem with the judicial branch telling the legislative branch how they are going to conduct business. But I agree with you the prayers had gotten out of hand and went over the line of what should have been allowed. Of course, whether that is unconstitutional is a different matter.

Even if Hamilton was correct that the prayer was unconstitutional, his ruling which would in the future place restrictions against Christian prayer that was not placed against other religions would not have survived appeal in my opinion.

Blog Admin said...


This was from a few years ago, and I can't remember if I read it on this blog or in a news article, but I remember someone saying that if it ever became a problem that the state house started endorsing Islam, Buddhism, etc..., then they can come back and fight that one too. In reality though, it's highly unlikely that there would ever be a non-Christian prayer there.

As for Gary's comments on Obama's votes against Bush's nominees, I'm going to cite Chief Justice Roberts on this. He beliefs that the appointment process for federal judges is becoming too politicized. So being vetted in a similar fashion to a Vice Presidential pick during a POTUS election, and add into that that the pay for federal judges is low compared to many local/state courts and what they can earn in the private sector.

There should be some sort of reform so that these federal seats aren't so hard to fill. But where to start on that, I have no idea.

It seems that Article 2, Section 2, Clause 2 of the Constitution only says Senate approval is the default method for non-Supreme Court judges. Congress can change that by passing a bill giving POTUS the exclusive authority, or to department heads, and so on. Could this be delegated to outside of the Executive branch, like to a board of non-partisan retired judges?

Paul K. Ogden said...


Your comment: "In reality though, it's highly unlikely that there would ever be a non-Christian prayer there (in the Legislature.)

That's very untrue. Non christians religious leaders often get invited to the House and Senate chambers to give a prayer. I was an intern in 1983 and they were inviting non-Christian religous leaders to give prayers back then. Granted non-christians prayers aren't as common, but non-christians do get invites and do deliver prayers.

There is an accusation out there that christian activists only insist on christian prayer. That's a very inaccurate. Christian activists probably more so than anyone argue for the open forum and are very solicitous of non-christian religions to give their prayer Why? It's a selfish reason - the presence of rabbis and non-christians giving prayer gives christians cover. I can't think of a single instance in which a christian activist actually argued to bar non-christian prayer. To do so would be suicide.

Let me be perfectly clear though that some of the Christian prayers were going way over the line of what is appropriate and should be allowed in the chamber. I'm Catholic and even I find the "walk with Jesus" prayer to be too over the top for a mixed religious audience.

As far as federal judges go, I never thought about it, but I guess they could change Senate approval of non-supreme court federal judges, possibly through legislation. I'm not wild though about the retired ex-judge panel. All you're talking about is taking poliltics and putting it behind closed doors. Indiana has the Missouri Plan merit system for appellate judges and it is about as political as a process can be.

IndyPaul said...

Gary, if you didn't mean to claim that Obama voted against all of Bush's judicial apointments, you should't have said that. I don't know what you mean by every 'major judicial appointment', but if you include appellate judges, which this post is about, that is incorrect also.