[Congressional Record Volume 155, Number 171 (Wednesday, November 18, 2009)]
[Senate]
[Page S11457]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                      NOMINATION OF DAVID HAMILTON

  Ms. MURKOWSKI. Madam President, when the Senate considers the 
nomination of David Hamilton to the Seventh Circuit U.S. Court of 
Appeals later this afternoon, I intend to vote no. Some may regard this 
as perhaps inconsistent with my vote yesterday when I joined with a 
number of my colleagues on this side of the aisle in voting for cloture 
on the nomination. I certainly do not regard the two positions as 
inconsistent.
  While I do not believe this nominee should be confirmed, I do believe 
judicial nominees deserve a straight up-or-down vote. I have come to 
the Chamber today to explain my views on the Hamilton nomination and 
expand upon why I voted as I did yesterday.
  Our process for consideration of judicial nominees is broken. It has 
been broken since I came to the Senate in 2003. In fact, on April 30, 
2003, I was among 10 freshman Senators, bipartisan, who wrote our 
respective leaders to say the confirmation process needed to be fixed. 
For reasons I can't fathom, we still seem to be light-years away from a 
process in which a President's judicial nominees come to the floor 
expeditiously for a straight up-or-down vote. This is a far cry from 
the process I am told the Senate adhered to prior to 2001 when there 
existed a strong presumption against the filibuster of judicial 
nominees. A cloture vote on a nomination was virtually unprecedented.
  I understand all of that changed in February of 2001 when our 
colleagues on the other side of the aisle decided they would engage in 
the regular practice of blocking the confirmation of courts of appeals 
nominees with whom they had ideological disagreements through the use 
of the filibuster process.
  Miguel Estrada, deemed ``well-qualified'' by a unanimous vote of the 
American Bar Association, had to suffer through seven failed cloture 
votes. This was in his bid to serve on the DC Circuit. Finally, he 
decided to move on with his life.
  Priscilla Owen, also a recipient of a unanimous ``well-qualified'' 
rating by the ABA, suffered through four failed cloture votes before 
ultimately being confirmed to the Fifth Circuit.
  David McKeague, a Sixth Circuit nominee, unanimously deemed ``well-
qualified'' by the ABA was filibustered. I could go on.
  In the 2003 letter, my cosigners and I noted that in some instances 
when a well-qualified nominee for the Federal bench is denied a vote, 
the obstruction is justified on the ground of how prior nominees, 
typically the nominees of a previous President, were treated.
  Without doubt, a number of President Bush's nominees to the U.S. 
court of appeals were treated unfairly by this body. Off the top of my 
head, I can probably count 11 nominees to the courts of appeals, each 
of whom was deemed qualified to serve by the American Bar Association 
raters, many ``well-qualified'' in that rating, who had to suffer the 
filibuster.
  It would not be my place to venture an opinion whether this entered 
into the cloture debate yesterday. However, I wish to make clear this 
is not how I evaluate judges for confirmation. In voting to end debate 
on the nomination of Judge Hamilton, I wanted to make the point that 
the qualified nominees of a President to the Federal bench deserve a 
straight up-or-down vote. This is what I believe the Constitution 
expects of this body in most cases.
  Having said that, I have substantial concerns about the elevation of 
Judge Hamilton. I have considered his record on the Federal district 
court in Indiana as well as criticisms of his record. I regard it as my 
personal responsibility to consider these matters. My confirmation 
votes reflect my personal judgment as to the qualifications of the 
nominee.
  As a Senator and as a mother, I have grave concerns about Judge 
Hamilton's judgment in recommending executive clemency for a 32-year-
old police officer who was convicted of violating Federal child 
pornography laws. The defendant pled guilty to Federal charges that he 
photographed in one case and videotaped in the other sexual encounters 
with two women, one age 16 and the other age 17. Although it may have 
been lawful for the defendant to engage in these encounters under the 
laws of Indiana, it is not lawful to photograph them under the laws of 
the United States.
  Judge Hamilton went out of his way to argue that the 15-year 
mandatory minimum sentence imposed by Congress for such violations was 
a miscarriage of justice in this case. He argued vociferously that 
executive clemency is warranted. This Senator does not understand why 
Judge Hamilton would choose this cause to champion. While I understand 
Judge Hamilton has imposed substantial sentences in other child 
pornography cases, I do not agree with his reasoning in this matter and 
cannot, in good conscience, support his confirmation.
  With that, Madam President, I appreciate the attention of the Chair. 
I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. INHOFE. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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