[Congressional Record (Bound Edition), Volume 155 (2009), Part 21]
[Senate]
[Pages 27930-27934]
[From the U.S. Government Publishing Office, www.gpo.gov]




                   NOMINATION OF JUDGE DAVID HAMILTON

  Mr. COBURN. I come to the floor--I am a member of the Judiciary 
Committee--to raise significant concerns about this nominee. There is 
no question he is a fine man. There is no question he has a lot of 
experience, a great education. But there is also no question in my mind 
that he is a highly activist Federal judge who will be promoted to a 
level of making final determinations on most of the decisions that come 
before him and his circuit.
  He does have a distinguished history, but his history is complicated 
by, in my opinion, a view that it doesn't matter what the Congress 
says; that it doesn't actually matter what precedent says; it doesn't 
matter what stare decisis, the precedent of the Supreme Court, says; he 
believes he can rule against that.
  After attending his hearings, I would note there were over 10,000 
pages of decisions and his vote on the committee was well before we 
could actually consider all 10,000 pages of decisions. He was voted out 
of our committee.
  I want to raise in detail some of my problems and then give some case 
histories to back them up. For example, I asked Judge Hamilton whether 
he thought it was appropriate for a judge to consider foreign law when 
interpreting the Constitution. Rather than

[[Page 27931]]

recognize the court should not be looking to foreign law when 
interpreting our Constitution, Judge Hamilton used an analogy of judges 
considering law review articles of American lawyers with consulting 
decisions of foreign courts. He stated:

       [C]ourts . . . will look to guidance from wise commentators 
     from many places--professors from law schools, experts in a 
     particular field who have written about it. And in recent 
     years, the Supreme Court has started to look at some courts 
     from other countries where members of the Court may believe 
     that there is some wisdom to be gained. As long as it is 
     confined to something similar to citing law professors' 
     articles, I do not have a problem with that.

  I have serious concerns with that. Let me put out what those are. 
What he fails to recognize when he equates the two is that professors 
who are writing on American law in American journals are writing about 
the interpretation of our Constitution based on American statutes and 
American values. They begin their analysis with an understanding of the 
creation of our Constitution by our Founders and our system of limited 
government.
  When American courts look to foreign law, they are considering 
opinions and wisdom of people who do not share our values and who are 
unfamiliar with American statutes and constitutional interpretations. 
By conflating the two types of references, Judge Hamilton tries to 
minimize the damage courts can inflict on our Constitution when they 
look to foreign courts for guidance.
  I was even more disturbed by Judge Hamilton's answers to my written 
questions following his hearing. In his responses, Judge Hamilton 
embraced President Obama's empathy standard, writing that empathy was 
``important in fulfilling [the judicial] oath.''
  As a matter of fact, Supreme Court Justice Sotomayor cited just the 
opposite. What she said was that she looks at facts, not empathy. She 
rejected the empathy standard.
  He also explained why he believed he fit this standard and emphasized 
his effects-based approach, stating:

       Because I will continue to do my best to follow the law, to 
     treat all parties who come before me with respect and 
     dignity, and to understand how legal rules or decisions will 
     affect behavior and incentives for different people and 
     different institutions.

  That is nowhere in the oath of a judge. Nowhere is that. Considering 
the consequences of his ruling and how that might affect people should 
not be part of the decisionmaking, in making the ruling.
  These statements following his hearing only confirmed what I feared 
prior to his hearing: that Judge Hamilton embraces a liberal activist 
philosophy and has implemented that philosophy in his legal decisions.
  As evidence of his activist tendencies on the bench, I will turn now 
to some of his opinions as a district court judge that illustrate his 
propensity to allow his personal biases to influence his decision. In 
the case of Women's Choice v. Newman, Judge Hamilton succeeded in 
blocking the enforcement of a valid Indiana law for informed consent 
for 7 years--7 years. The law required doctors to give certain medical 
information to women in person before an abortion could be performed 
and required a waiting period before an abortion was performed.
  There is already precedent, clearly by Casey, in the Supreme Court. 
When overturning Judge Hamilton's ruling, the Seventh Circuit harshly 
criticized his decision by stating:

       [F]or seven years, Indiana has been prevented from 
     enforcing a statute materially identical to a law held valid 
     by the Supreme Court in Casey, by this court in Karlin, and 
     by the Fifth Circuit in Barnes. No court anywhere in the 
     country (other than one district judge in Indiana) has held 
     any similar law invalid in the years since Casey . . . 
     Indiana (like Pennsylvania and Wisconsin) is entitled to put 
     its law into effect and have that law judged by its own 
     consequences.

  That is a harsh review.
  Further, Judge Coffee, in his concurring opinion in this case, was 
even more critical of Judge Hamilton's opinion, and he specifically 
criticized Hamilton's reliance on one study which was conducted by the 
Planned Parenthood-affiliated Guttmacher Institute.
  Here is what he said about Judge Hamilton's decision:

       [His decision] invades the legitimate province of the 
     legislative and executive branches.

  That is the problem with judicial activists. They see no limits. They 
take a personal bias, and they use that bias rather than interpreting 
the statutes and looking at precedent. They make their own decision. 
For 7 years Indiana was without a duly-passed statute passed by the 
elected representatives of that State, in error, because Judge Hamilton 
believed something different.
  He didn't rely on precedent. He relied on his personal bias, a strong 
personal bias that said that wasn't right, when all the other courts 
had recognized the precedent by Casey.
  Here is what Judge Coffee also said:

       As a result, literally thousands of Indiana women have 
     undergone abortions since 1995 without having had the benefit 
     of receiving the necessary information to ensure that their 
     choice is premised upon the wealth of information available 
     to make a well-informed and educated life-or-death decision. 
     I remain convinced that [Judge Hamilton] abused his 
     discretion when depriving the sovereign State of Indiana of 
     its lawful right to enforce the statute before us. I can only 
     hope that the number of women in Indiana who may have been 
     harmed by the judge's decision is but few in number.

  As the Seventh Circuit properly notes, as a result of his activism, 
Judge Hamilton effectively prevented the people of Indiana from 
enforcing a duly enacted, reasonable restriction on abortion in 
violation of existing law and Supreme Court precedent.
  In two other cases, Judge Hamilton succeeded in excluding traditional 
religious expression from the public square. In the case of Hinrichs v. 
Bosma, Judge Hamilton prohibited prayers in the Indiana State 
Legislature that mentioned Jesus Christ while allowing those that 
mentioned Allah. The Seventh Circuit reversed that decision.
  In another case, Grossbaum v. Indianapolis-Marion County Building 
Authority, Judge Hamilton's decision prohibited a rabbi from placing a 
menorah in a public building. A unanimous Seventh Circuit court panel 
reversed Judge Hamilton's ruling and noted that he had ignored two 
Supreme Court cases that were directly on point.
  Why would a learned judge ignore precedent? There is only one reason 
for ignoring precedent, and that is a judicial activist bias that he 
does not have to follow the law; that he is not limited by the 
Constitution, but he is limited to his personal feelings and his 
personal beliefs. That is the exact opposite of what we want in terms 
of neutrality of those directing court proceedings.
  Judge Hamilton's record also suggests he is empathetic toward 
criminal defendants rather than the victims of crimes. According to the 
Almanac of the Federal Judiciary, local practitioners have said Judge 
Hamilton ``is the most lenient of any judge in the district. . . .''
  ``He is one of the more liberal judges in the district.''
  ``He leans towards the defense.''
  ``He is your best chance for downward departures.''
  ``In sentencing, he tends to be very empathetic to the downtrodden or 
those who commit crimes due to poverty.''
  Blind justice doesn't recognize wealth when you commit a crime. It 
doesn't recognize wealth. If, in fact, that were the case, we should 
have more severe penalties for people who have greater means. But, 
instead, we treat everybody the same under the law.
  I believe his judicial record confirms the statements of these local 
practitioners. For example, in the case of United States v. Woolsey, 
Judge Hamilton ignored the prior conviction of a defendant in order to 
avoid imposing a life sentence and was reversed by the Seventh Circuit. 
He ignored a prior conviction. He chose to ignore it. Activist, not 
following the law, not following the Code of Judicial Conduct. You do 
not get the choice to ignore it. It is a breach of his judicial oath. 
Yet he does it.
  Here is what the Seventh Circuit said as they criticized Judge 
Hamilton's decision:

       [The] Indiana district court was not free to ignore 
     Woolsey's earlier conviction . . . we

[[Page 27932]]

     have admonished district courts that the statutory penalties 
     for recidivism . . . are not optional, even if the court 
     deems them unwise or an inappropriate response to repeat drug 
     offenders.

  In yet another case demonstrating his empathy toward criminals, Judge 
Hamilton took the unusual step of issuing a separate written order of 
judgment and conviction ``so that it may be of assistance in the event 
of an application for executive clemency'' because he believed the 15-
year mandatory sentence he was forced to impose on a child pornographer 
was too harsh.
  In this case, U.S. v. Rinehart, the defendant, a police officer, pled 
guilty to two counts of producing child pornography after he took 
pictures of a 16-year-old girl engaged in ``sexually explicit conduct'' 
and took videos of himself and a 17-year-old girl engaging in sexual 
relations. These images ended up on his home computer, and he was 
charged under the Child Protection Act of 1984.
  In a separate written order of judgment, Judge Hamilton concluded by 
stating his personal views in this case and urging executive clemency. 
He is stating his personal views in this case, in other words, not that 
of a judge. He has stepped out of being a judge. Now, using the role of 
a judge, he is using his personal views to influence clemency. Here is 
what he said:

       This case, involving sexual activity with victims who were 
     16 and 17 years old and who could and did legally consent to 
     the sexual activity, is very different. But because of the 
     mandatory minimum sentence of 15 years required by 18 U.S.C., 
     2251(e), this court could not impose a just sentence in this 
     case. The only way that Rinehart's punishment could be 
     modified to become just is through an exercise of executive 
     clemency by the President. The court hopes that will happen.

  He later confirmed to us that he thought that action was appropriate. 
When Congress passed the Child Protection Act of 1984, at issue in this 
case, it determined that in order to strengthen Federal child 
pornography laws, a child is defined as someone under the age of 18. So 
what did Judge Hamilton do? He said what we say doesn't make any 
difference. The fact that the legislative body signed it, and it was 
put into law by the executive branch--he didn't think that counted 
because he didn't agree with it. So he went outside of it to try to get 
clemency based on him thinking we were wrong. He didn't have any basis 
of law to do it, but then did it anyway.
  In our constitutional system of government the power to create 
legislation is assigned to the Congress and a judge must simply 
interpret the law as it is written. This judge refused to do that.
  When a judge second-guesses Congress, criticizes its legislative 
decisions as being unfair, and invites a grant of clemency, he 
undermines the rule of law and the confidence the American people have 
in their government. Judge Hamilton's action in this case belies his 
tendency to empathize with criminal defendants.
  These are just a few of the statements and opinions in Judge 
Hamilton's record that form the basis of my opposition. I believe he is 
an activist jurist. He has shown that he will allow his personal biases 
and prejudices to affect the outcome of cases before him. I do not 
believe he deserves a promotion to the Seventh Circuit where he will be 
even less constrained by precedent and the possibility of a reversal on 
appeal.
  I will be voting against his confirmation, and I believe the people 
of this country should be very wary of other judges who have an 
activist bent, who disrespect the rule of law, who believe they do not 
have to look at precedent, who, because their personal bias is 
different than what the law says, believe they can be in a position to 
effect change in the law rather than have it come through, or all the 
way to the court, to do that.
  The job of the judge is to interpret the law and the facts carefully. 
This judge does not do that.
  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.
  The PRESIDING OFFICER (Ms. Stabenow). The distinguished assistant 
majority leader.
  Mr. DURBIN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. I rise to speak in support of the nomination of David 
Hamilton, who is President Obama's nominee to serve on the U.S. Court 
of Appeals for the seventh Circuit.
  This appellate court has jurisdiction over three states, including my 
home State of Illinois. Because the Supreme Court takes so few cases 
these days, the circuit courts have the final word in 99 percent of 
Federal cases. In other words, the buck stops with the Seventh Circuit 
for the vast majority of my constituents when they have a legal 
grievance.
  Yesterday, we had to have a cloture vote on the Hamilton nomination 
because a majority of Republican Senators wanted to filibuster it. 
Three-quarters of the Republican caucus voted to filibuster Judge 
Hamilton. That is astonishing.
  Judge Hamilton is a moderate, mainstream judge who has earned an 
outstanding reputation during his 15 years of service on the Federal 
district court. He has strong bipartisan support, including the support 
of Republican Senator Richard Lugar.
  Another reason I was surprised to see the filibuster attempt is 
because, during the Bush administration, Senate Republicans made speech 
after speech about their fervent belief that every judicial nominee 
deserved an up or down vote on the Senate floor. If I had a dollar for 
every time a Republican Senator advocated for this position, I would be 
a wealthy man.
  This was such an article of faith among the Senate Republicans during 
the Bush years that they tried to change the rules of the Senate to ban 
the filibuster of judicial nominees and to require up or down votes. 
This was called the ``nuclear option'' and the Senate spent days and 
weeks debating this issue. Thankfully, a handful of courageous 
Republican Senators opposed it, and this cynical effort was defeated.
  We are today seeing a complete double standard when it comes to the 
way some of my Republican colleagues are treating judicial nominations. 
When President Bush was in office, they wanted to rubberstamp every 
nomination. Now that the tables have turned and we have a Democratic 
President, we have seen unprecedented obstructionism from the 
Republican side.
  Under President Bush, over half of his judicial nominees were 
confirmed by voice vote or unanimous consent. The Democrats consented 
to their confirmation without requiring time being spent on a rollcall 
vote on the Senate floor. The Republicans, by contrast, haven't agreed 
to a voice vote or unanimous consent on a single one of President 
Obama's judicial nominees.
  In addition, many of the Bush nominees were confirmed within days of 
being approved by the Judiciary Committee. The average circuit court 
nominee under President Bush was confirmed just 29 days after being 
voted out of the Judiciary Committee. By contrast, the average Obama 
circuit court nominee has had to wait 141 days between the committee 
vote and confirmation. President Obama's circuit court nominees have 
had to wait five times longer than President Bush's nominees for a 
vote.
  As a result, the Republicans have ground the judicial nomination 
process almost to a halt. They have agreed to votes on only seven of 
President Obama's judicial nominees.
  Let's compare this confirmation rate with the number of judges who 
were confirmed by Thanksgiving under past Presidents. Under President 
Bush, there were 18 judges confirmed by Thanksgiving. Under President 
Clinton, there were 28. Under the first President Bush, there were 15. 
Under President Reagan, there were 29, and under President Carter there 
were 26. President Obama has had only 7 judges confirmed--due to 
Republican stalling tactics.
  The Republican obstructionism isn't limited to President Obama's 
judicial nominations. As of today, they are

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holding up 40 different nominations, including 10 judicial nominees and 
30 executive branch nominees. The vast majority of these nominees are 
noncontroversial. They were passed with unanimous support in the Senate 
committee of jurisdiction.
  Many of the individuals who are being held up by Senate Republicans 
have been nominated for important administration positions and long-
vacant Federal judgeships. Without Senate confirmation of these 
nominees, many Americans will see delays in their ability to seek 
justice in our courts, and delays in the ability of the Obama 
administration to tackle some of our most pressing national problems.
  Unlike many of the judicial nominees sent up by President Bush, the 
current President has bent over backwards to identify consensus 
nominees--like Judge David Hamilton--who have bipartisan support. Many 
of President Bush's judicial nominees, by contrast, did not have 
bipartisan support or home-State Senator support. With many of 
President Bush's nominees, it was clear that the Bush White House 
wanted to pick a fight, rather than a judge.
  President Obama is a breath of fresh air. Every single one of his 
judicial nominees has the support of their home State Senators, be they 
Democrats or Republicans.
  Senator Lugar--a conservative Republican from Indiana--came to the 
Senate floor this week and made a strong and compelling case for Judge 
Hamilton's confirmation. When he introduced Judge Hamilton to the 
Senate Judiciary Committee in April, Senator Lugar said the following:

       I believe our confirmation decisions should not be based on 
     partisan considerations, much less on how we hope or predict 
     a given judicial nominee will ``vote'' on particular issues 
     of public moment or controversy. I have instead tried to 
     evaluate judicial candidates on whether they have the 
     requisite intellect, experience, character and temperament 
     that Americans deserve from their judges, and also on whether 
     they indeed appreciate the vital, and yet vitally limited, 
     role of the Federal judiciary faithfully to interpret and 
     apply our laws, rather than seeking to impose their own 
     policy views. I support Judge Hamilton's nomination, and do 
     so enthusiastically, because he is superbly qualified.

  I hope my colleagues across the aisle will keep these words in mind 
when they vote on the Hamilton nomination.
  Is Senator Lugar the only Republican in Indiana who supports Judge 
Hamilton? No. Another prominent Republican supporter is the president 
of the Indiana Federalist Society: Geoffrey Slaughter. The Federalist 
Society is an organization of ultraconservative lawyers, and they don't 
typically support Obama nominees. But the Indiana Federalist Society 
president has said:

       I regard Judge Hamilton as an excellent jurist with a 
     first-rate intellect. He is unfailingly polite to lawyers. He 
     asks tough questions to both sides, and he is very smart. His 
     judicial philosophy is left of center, but well within the 
     mainstream.

  Does that sound like the type of judicial nominee who should be 
filibustered?
  The critics of Judge Hamilton have singled out a handful of decisions 
in his 15 years on the bench and 8,000 cases. Senator Lugar has done an 
excellent job explaining why Judge Hamilton's rulings were sensible and 
defendable.
  The Hamilton nomination has been pending on the Senate floor for 
nearly 6 months. Enough is enough.


                      Nomination of Mary L. Smith

  Madam President, I would also like to discuss another nominee whom 
the Republicans have been stalling: Mary L. Smith. She is President 
Obama's nominee to be the Assistant Attorney General for the Tax 
Division at the Justice Department. Mary is from my home State of 
Illinois, and Senate Republicans have been holding up her nomination 
for over 5 months.
  Mary Smith is a highly qualified nominee who has had a distinguished 
18-year legal career. After graduating from the University of Chicago 
law school, she clerked for a prestigious Federal judge and then 
litigated at a large Chicago law firm. She then worked as a trial 
attorney in the Justice Department's Civil Division and as a lawyer in 
the Clinton White House.
  Mary returned to private practice and joined the international law 
firm of Skadden, Arps, Slate, Meagher & Flom, where she focused on 
business litigation. After 4 years at Skadden, she went to work at Tyco 
International, where she managed what has been called the most complex 
securities class action litigation in history.
  Mary has also been deeply devoted to pro bono work and public 
service, which really tells the story of a lawyer's dedication to the 
profession. She serves on many bar association boards including the 
Chicago Bar Foundation, which helps provide free legal services to low-
income and disadvantaged individuals.
  Mary Smith is not only a highly qualified nominee, she is a historic 
nominee. Mary is a member of the Cherokee Nation and, if confirmed, she 
would be the first Native American to hold the rank of Assistant 
Attorney General in the 140-year history of the Justice Department. She 
would be the highest ranking Native American in DOJ history.
  I was sorry to see that when we took up Mary Smith's nomination in 
the Senate Judiciary Committee, the Republican members voted against 
her. They alleged she was unqualified for the job because she doesn't 
have as much tax law experience as other recent Tax Division nominees.
  The Judiciary Republicans are grasping at straws with this 
allegation. First of all, it is an inherently subjective determination. 
There is no record of how much time Mary Smith has spent working on tax 
issues compared with previous nominees.
  It is true Mary is not a traditional tax lawyer, but she has worked 
on tax law and tax policy issues throughout her career. During the 
years she worked at Tyco International, she worked closely with that 
company's tax department on responding to IRS subpoenas and assessing 
the complex tax implications of the $3 billion settlement of the Tyco 
securities litigation.
  When she served in the Clinton White House she worked with 
congressional offices, the Treasury Department, and the National 
Economic Council to address tax disparities between Indian tribes and 
State governments.
  And more recently, she served on President Obama's Justice Department 
transition team, and she helped review and analyze the Tax Division, 
the very office she has been nominated to lead.
  The second reason the Republican allegation about Mary Smith's 
qualifications is off base is because Mary has more litigation, 
management, and Justice Department experience than previous Tax 
Division nominees. Those are critical qualifications to lead the Tax 
Division. In this respect, Mary Smith is more qualified than her 
predecessors.
  Mary is a seasoned litigator who has had multiple trials and 
courtroom experience. The head of the Tax Division needs first and 
foremost to be a person with litigation experience, and Mary Smith fits 
the bill. She has been a litigator in the Justice Department, in two 
large law firms, and in one of the largest corporations in the country. 
Two of the recent Tax Division leaders--whom the Judiciary Republicans 
hold up as models of what it takes to lead that office--had no 
litigation experience and never had a single trial.
  Mary is also more qualified than some of her predecessors when it 
comes to management experience. The Tax Division is an office with over 
350 attorneys. When she worked on the Tyco litigation, Mary managed 
over 100 lawyers and a $50 million budget. She managed large litigation 
teams while working at the Skadden Arps law firm. And during her 
service in the White House, she helped manage and coordinate the work 
of multiple Federal agencies. None of the other recent Tax Division 
nominees had as much management experience as Mary Smith, a fact that 
has little value to the Judiciary Republicans who voted against her.
  Mary also has more Justice Department experience than her recent 
predecessors. She worked in the DOJ Civil Division as a trial attorney, 
and she was a key member of President Obama's DOJ review team last 
winter. She understands the Justice Department as an institution, and 
the perspective of the DOJ career staff.

[[Page 27934]]

  In short, Mary has an excellent background to lead the Tax Division. 
She has litigation experience, management experience, DOJ experience, 
and tax experience. None of the previous heads of that office had all 
of these qualifications combined.
  One of those prior Tax Division leaders, Nathan Hochman, has come 
forward in support of Mary Smith's nomination. Mr. Hochman was the head 
of the Tax Division under President George W. Bush, so he's not exactly 
a partisan Democrat. Mr. Hochman wrote a letter to the Senate and said 
the following:

       I am confident Mary will provide strong leadership for the 
     [Tax] Division and is a good choice. . . . Mary's private 
     practice experience in complex financial litigation gives her 
     a working background for the type of cases litigated by the 
     [Tax] Division.

  I would suggest that President Bush's Tax Division leader has a 
better understanding of what it takes to lead the Tax Division than a 
handful of Senators.
  Ted Olson is another prominent Republican who supports Mary Smith for 
this position. Mr. Olson is one of the most respected lawyers in 
America and he served as the Solicitor General at the Justice 
Department under President George W. Bush. He worked closely with the 
Tax Division and represented that office in cases before the Supreme 
Court.
  Ted Olson wrote a letter to the Senate and called Mary Smith ``a 
first-rate litigator'' and ``a fine choice to be this nation's 
Assistant Attorney General for the Tax Division.''
  The Senate has received dozens of other letters of support for Mary 
Smith, including many from our Nation's leading Native American 
leaders. They are eager for the Senate to confirm Mary so she can 
become the highest ranking Native American in the history of the 
Justice Department.
  The month of November is National American Indian and Alaska Native 
Heritage Month. We would honor our Native American community by 
confirming Mary Smith this month.
  I urge my Republican colleagues to stop blocking this important 
nomination and agree to a vote on my Illinois constituent, Mary Smith.
  Mr. BUNNING. Madam President, I rise today to speak in opposition to 
the nomination of Judge David Hamilton for the Seventh Circuit Court of 
Appeals.
  First of all, I would like to speak on the state of the judicial 
nomination process in the Senate. For several weeks now, I have 
listened to my colleagues on the other side of the aisle speak on this 
floor about so-called obstructionism by the minority regarding judicial 
nominations. For 214 years, the U.S. Senate enjoyed a tradition of 
holding fair up-or-down votes on judicial nominees regardless of the 
Senate's political makeup. Beginning in 2003, my colleagues on the 
other side of the aisle ended that tradition when they successfully 
filibustered 10 judicial nominations by President Bush whom they 
considered ``out of the mainstream.'' At the time, we insisted that 
this was a bad and inefficient precedent to set. However, the other 
side insisted on traveling down that road. Now the majority claims that 
if we in the minority care about the good of the country, we should 
just let any judicial nomination by the President sail through the 
Senate without any objection. I would encourage those Senators to come 
to my office to listen to the hundreds of Kentuckians who call and 
write every day in opposition to the nomination of Judge Hamilton and 
tell those people that they are being ``obstructionists.''
  Judge Hamilton's judicial record is not only insufficient for the 
Seventh Circuit, it is downright scary. He prides himself on blatant 
judicial activism. On multiple occasions, Judge Hamilton has argued 
that judges have the power to change the Constitution when making court 
decisions. He has stated:

     part of our job here as judges is to write a series of 
     footnotes to the Constitution.

  If Judge Hamilton would have properly read the Constitution, I am 
sure he would have realized that it explicitly says that Congress is 
the only branch which has the authority to make any kind of additional 
mark to that document.
  Looking at his record, Mr. Hamilton has issued some very troubling 
rulings on child predators. He specifically invalidated a law that 
required convicted sex offenders to provide information to law 
enforcement agencies for tracking purposes. In another instance, Mr. 
Hamilton petitioned the President to grant clemency for someone guilty 
of producing child pornography. The Supreme Court only hears a small 
fraction of petitioned cases, and, in many cases, precedent is set at 
the circuit level. Does anyone want someone on the bench setting this 
kind of precedent?
  Furthermore, in practicing his judicial activist point of view, Judge 
Hamilton struck down an Indiana law that simply required women to 
receive medical information on the effects of an abortion before going 
through the procedure. This is a commonsense law and similar laws have 
never been invalidated by any other judge in the country. The Seventh 
Circuit Court, to which Mr. Hamilton has been nominated, reversed and 
was harshly critical of this ruling. The Seventh Circuit reversed 
another outlandish ruling of Judge Hamilton's. He prohibited prayer in 
the Indiana House of Representatives that mentioned Jesus Christ, but 
inconsistently allowed prayers that mention Allah. These outline a very 
troubling pattern on the bench.
  If any of the President's judicial nominees deserve scrutiny, Judge 
Hamilton is one of them. His record is clearly out of the mainstream of 
public opinion and he clearly is motivated to push his own political 
agenda. A good judge is able to set aside his or her own personal 
opinions when deciding cases. I do not believe that Judge Hamilton can 
do this. I strongly encourage my colleagues to oppose this nomination.
  Mr. DODD. Madam President, I note the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. DODD. I ask unanimous consent that the order for the quorum call 
be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________