[Congressional Record (Bound Edition), Volume 155 (2009), Part 21]
[Senate]
[Pages 28315-28323]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF DAVID F. HAMILTON TO BE UNITED STATES CIRCUIT JUDGE FOR 
                          THE SEVENTH CIRCUIT

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to resume consideration of the following 
nomination, which the clerk will report.
  The bill clerk read the nomination of David F. Hamilton, of Indiana, 
to be United States Circuit Judge for the Seventh Circuit.
  Mr. LEAHY. Mr. President, is there a division of time in this matter?
  The PRESIDING OFFICER. The time until 2:30 is equally divided.
  Mr. LEAHY. Mr. President, I yield myself 10 minutes.
  Mr. LEAHY. Mr. President, the Senate is concluding its long-delayed 
consideration of the nomination of Judge David Hamilton of Indiana to 
the Seventh Circuit. Early this week, 70 Senators--Democrats, 
Independents and Republicans--joined together to overcome a filibuster 
of this nomination. This has been a record year for filibusters by the 
Republican minority: filibusters of needed legislation, filibusters of 
executive nominations and filibusters of judicial nominations, which 
just a few years ago they proclaimed were ``unconstitutional.'' 
Although their filibuster failed, what they achieved was obstruction 
and delay. This is a nomination that has been stalled on the Senate 
Executive Calendar for 5\1/2\ months, since June 4. In the days since 
that bipartisan majority of 70 Senators voted to bring to an end the 
debate on the Hamilton nomination, and in the more than 30 hours of 
possible debate time since then, Republican Senators have devoted 
barely one hour to the Hamilton nomination. Only four Republican 
Senators have spoken at all and that includes the Senator from Alabama 
who repeated the claims he had made five times to the Senate since 
September 17.
  As has been reported since the nomination was made in mid-March, 
President Obama's selection of Judge Hamilton as his first judicial 
nominee was intended to send a message of bipartisanship. President 
Obama reached out and consulted with both home State Senators, Senator 
Lugar and Senator Bayh, a Republican and a Democrat, in making his 
selection. This stands in sharp contrast to the methods of his 
predecessor, who was focused on a narrow ideological effort to pack the 
Federal courts, often did not consult, and too often tried to force 
extreme candidates through the Senate. That is what led to 
filibusters--that and Senate Republicans changing of the rules, 
procedures and protocols of the Senate.
  The nomination of Judge Hamilton is an example of that consultation. 
Other examples are the recently confirmed nominees to vacancies in 
South Dakota, who were supported by Senator Thune, and the nominee 
confirmed to a vacancy in Florida, supported by Senators Martinez and 
LeMieux. Still others are the President's nomination to the Eleventh 
Circuit from Georgia, supported by Senators Isakson and Chambliss, his 
recent nominations to the Fourth Circuit from North Carolina, which I 
expect will be supported by Senator Burr, and the recent nomination to 
a vacancy in Alabama supported by Senators Shelby and Sessions on which 
the Judiciary Committee held a hearing 2 weeks ago.
  President Obama has respected the Senate's constitutional advice and 
consent role by engaging in meaningful consultation in making his 
judicial nominations. He has consulted with home State Senators from 
both sides of the aisle. This stands in sharp contrast to the methods 
of his predecessor, who was focused on a narrow ideological effort to 
pack the Federal courts, often did not consult, and too often tried to 
force extreme candidates through the Senate. That is what led to 
filibusters that and Senate Republicans changing of the rules, 
procedures and protocols of the Senate. In today's Washington Post, 
columnist E.J. Dionne writes about this occurrence and yesterday's 
failed attempt at a filibuster. I will ask that a copy of this column 
be printed in the Record.
  Yet despite that consultation and the support and endorsement of the 
senior Republican in the Senate, Senator Lugar, Republicans have 
filibustered and now oppose this nomination. Their response to 
President Obama's outreach and seeking to turn the page and set a new 
tone in judicial nominations by restoring comity is to attack his well 
qualified nominees and stall Senate action. In May, just before Judge 
Hamilton's nomination was reported by the committee, a senior 
Republican Senator reflected upon the Senate confirmation process for 
judicial nominees and correctly observed: ``[C]harges come flying in 
from right and left that are unsupported and false. It's very, very 
difficult for a nominee to push back. So I think we have a high 
responsibility to base any criticism that we have on a fair and honest 
statement of the facts and that nominees should not be subjected to 
distortions of their record.'' I agree.
  Regrettably, however, that is not how Republican Senators have acted. 
Judge Andre Davis of Maryland, a distinguished African-American judge, 
was stereotyped as ``anti-law enforcement'' last week by Republican 
critics, and this week Judge Hamilton, the son of a Methodist minister, 
is reviled as hostile to Christianity. That is not fair treatment.
  The unfair distortions of Judge Hamilton's record by right-wing 
special interest groups seeking to vilify him have been repeated in 
editorials in the Washington Times and by Republican opponents in the 
Senate. They resort to twisting and contorting his judicial record and 
his views, and ignore the record before the Senate. Those distortions 
of Judge Hamilton's record were soundly refuted earlier this week by 
the senior Senator from Indiana, Senator Lugar. I doubt that I will add 
to his sound and thoroughgoing rebuttal. Judge Hamilton's critics are 
wrong and have been wrong all along.
  Senator Lugar and Senator Bayh believe Judge Hamilton is superbly 
qualified and a mainstream jurist. I agree. Yet Republican critics of 
Judge Hamilton are determined to ignore the knowledge and endorsement 
of these home State Senators as well as Judge Hamilton's long, 
mainstream record on the bench to paint an unfair caricature of him. 
They are wrong to ignore Judge

[[Page 28316]]

Hamilton's record of fairly applying the law in over 8,000 cases and 
his ``well qualified'' rating by the American Bar Association. These 
critics ignore Judge Hamilton's testimony before the committee when he 
said, ``I make decisions based on the facts and applicable law of each 
case.'' They ignore his statement that ``sympathy for one side or 
another'' in a case ``has no role in the process'' of judging. Instead, 
they construct and then seek to impose their own ``litmus tests'' and 
contort his record and statements in their ends-oriented effort to find 
him wanting.
  Republican Senators did not object when Chief Justice Roberts 
testified at his confirmation hearing that ``of course, we all bring 
our life experiences to the bench.'' Republican Senators did not 
criticize Justice Alito at his confirmation hearings in 2006 for 
describing the importance of his background when evaluating 
discrimination cases. Justice Alito said: ``When I get a case about 
discrimination, I have to think about people in my own family who 
suffered discrimination because of their ethnic background or because 
of religion or because of gender. And I do take that into account.''
  I recall one nominee who spoke during his confirmation hearing of his 
personal struggle to overcome obstacles. He made a point of describing 
his life as:

       [O]ne that required me to at some point touch on virtually 
     every aspect, every level of our country, from people who 
     couldn't read and write to people who were extremely 
     literate, from people who had no money to people who were 
     very wealthy. So, what I bring to this Court, I believe, is 
     an understanding and the ability to stand in the shoes of 
     other people across a broad spectrum of this country.

  That is the definition of empathy. And that nominee was Clarence 
Thomas. Indeed, when President George H.W. Bush nominated Justice 
Thomas to the Supreme Court he touted him as, ``a delightful and warm, 
intelligent person who has great empathy and a wonderful sense of 
humor.'' Justice O'Connor, who had a long and distinguished record of 
evenhandedness on the Supreme Court, explained recently: ``You do have 
to have an understanding of how some rule you make will apply to people 
in the real world. I think that there should be an awareness of the 
real-world consequences of the principles of the law you apply.''
  Yet now Republican Senators seek to apply a newly constructed 
``litmus test'' that rejects what they had previously viewed as 
positive attributes as disqualifying. Their opposition to President 
Obama is so virulent that they act as if they must oppose anything he 
supports. If he sees value in judges with real world perspectives who 
consider the real impact of various readings of the law on everyday 
Americans, they must react in knee jerk opposition. They use a 
distorted lens to review a 15-year judicial record in which he has not 
substituted empathy for the law to somehow conclude that he will if 
confirmed to the new appointment. It is reminiscent of the Salem witch 
trials. They see what they want to see.
  Senator Lugar noted this week that the President of the Indiana 
Federalist Society endorsed Judge Hamilton as an ``excellent jurist and 
first-rate intellect'' with a judicial philosophy ``well within the 
mainstream.'' Senator Lugar's own review of his record, with help from 
a former Reagan counsel, led him to conclude based on that record that 
``Judge Hamilton has not been a judicial activist and has ruled 
objectively and within the judicial mainstream.'' Senator Bayh 
reinforced that conclusion with his statements in support of the 
nomination.
  Republican critics are slavishly channeling the talking points of far 
right narrow special interest groups to twist a handful of the Judge 
Hamilton's 8,000 cases to make biased and unfair attacks on the 
character and record of a moderate judge and a good man. For example, 
they have misrepresented two of his cases, Hinrichs v. Bosma, 2005, and 
Grossbaum v. Indianapolis-Marion County Bldg. Authority, 1994, to 
falsely describe Judge Hamilton, the son of a Methodist minister, as 
hostile to religion, and to Christianity in particular. In fact, these 
cases show nothing more than that Judge Hamilton has consistently and 
objectively performed his duty as a judge to apply the law carefully to 
the case before him.
  In Hinrichs v. Bosma, Judge Hamilton did not eliminate prayer, as 
some critics have charged. In fact, his narrow and carefully considered 
ruling was that the Indiana Legislature may begin its sessions with any 
nondenominational, nonsectarian prayers--prayers that do not advance a 
particular faith. He noted that those prayers ``must be non-sectarian 
and must not be used to proselytize or advance any one faith or belief 
or to disparage any other faith or belief.'' Prayers from any 
religion--be they Christian, Jewish, Muslim or from another religion--
that advance a particular faith were not permissible.
  The plaintiffs in Hinrichs had challenged the Christian orientation 
of most of the prayers delivered during the 2005 Indiana House session. 
So, as part of his analysis, Judge Hamilton reviewed the 45 available 
transcripts of the 53 opening prayers that were offered during that 
session. He relied on undisputed testimony of scholars and clerics of 
different faiths who themselves concluded that ``many of the 
legislative prayers delivered during the 2005 House session were 
sectarian, Christian in orientation, and sent a strong message of non-
inclusion to those who are not Christian.'' His careful ruling did not 
depart from settled precedent. It followed the settled law from the 
Supreme Court and in the Seventh Circuit interpreting the establishment 
clause of the first amendment of the Constitution.
  The critics of Judge Hamilton who have made much of the fact that 
Judge Hamilton's decision was overturned by the Seventh Circuit ignore 
the fact that it was overturned only on the technical issue of 
standing, not on the merits of Judge Hamilton's opinion. In fact, even 
on this narrow technical point the Seventh Circuit initially upheld 
Judge Hamilton's 2005 decision that taxpayers had standing to sue the 
Indiana House of Representatives, challenging the practice of offering 
sectarian prayers at the beginning of sessions as a violation of 
establishment clause. The Seventh Circuit only reversed Judge Hamilton 
on this technical threshold question after the Supreme Court handed 
down an intervening 2007 decision, Hein v. Freedom from Religion 
Foundation, 2007, was issued after Judge Hamilton's decision was on 
appeal. In doing so, the Seventh Circuit acknowledged that it also was 
reversing its own previous decision in the case that affirmed Judge 
Hamilton's ruling that plaintiffs had standing.
  These same critics have gone so far as to claim that Judge Hamilton 
favors Muslim prayers to Christian ones by allowing prayers to Allah, 
while forbidding prayers to Jesus Christ. This slur led to a Washington 
Times editorial denouncing the nomination. As Judge Hamilton explained 
in a ruling on a post-trial motion in Hinrichs, closely following 
Supreme Court precedent from Marsh v. Chambers, 1983, the mere use of 
the word for ``God'' in another language, such as the ``Arabic Allah, 
the Spanish Dios, the German Gott, the French Dieu, the Swedish Gud, 
the Greek Theos, the Hebrew Elohim, the Italian Dio'' does not make a 
prayer sectarian, because it does not ``advance a particular religion 
or disparage others.'' However, as Judge Hamilton testified in response 
to a question from Senator Graham, under the reasoning of his ruling in 
Hinrichs, ``a prayer asserting that Mohammed was God's prophet would 
ordinarily be considered a sectarian Muslim prayer'' and impermissible.
  Senators who charge that Judge Hamilton's ruling allows Muslim 
prayers whole forbidding Christian ones have either not read the case 
or choose to ignore what it says. Judge Hamilton's analysis of the 53 
opening prayers that were offered in the Indiana House during the 2005 
legislative session, found that all but one were delivered by Christian 
ministers or ministers identified with Christian churches. He noted 
that the one prayer that was not, which was delivered by a Muslim man, 
unlike the vast majority of the prayers from Christian clergy, was 
``inclusive

[[Page 28317]]

and was not identifiable as distinctly Muslim from its content.''
  Judge Hamilton also faithfully applied binding precedent when 
deciding Grossbaum. In that case, Judge Hamilton correctly relied on 
then-current Supreme Court and Seventh Circuit precedent interpreting 
the free speech clause of the first amendment to reach his decision 
that the Indianapolis building authority acted lawfully in refusing to 
allow a rabbi to display a menorah in the lobby of the city-county 
building. His decision relied on a 1990 Seventh Circuit decision, 
Lubavitch Chabad House, Inc. v. City of Chicago, which upheld a 
decision by the city of Chicago to put a Christmas tree in the O'Hare 
Airport and, at the same time, to exclude private displays of religious 
symbols.
  As with Hinrichs, right wing critics point to the Seventh Circuit's 
reversal of Judge Hamilton's decision to argue that he got it wrong and 
did not apply the law. What this account leaves out is that the Supreme 
Court case relied on by the Seventh Circuit to reverse Judge Hamilton 
did not come down until 1995, after Judge Hamilton issued his decision 
in Grossbaum. In reversing Judge Hamilton's decision, the Seventh 
Circuit specifically noted that Judge Hamilton acted without benefit of 
the Supreme Court's new guidance in this area provided by Rosenberger 
v. Rector & Visitors of the University of Virginia, 1995.
  Had Judge Hamilton ignored the binding precedent in certain religion 
cases to make his decision based on personal beliefs and not the law, 
he would have been an activist going beyond his role as a district 
judge. As I read these cases, I had in mind the words of Senator Lugar 
who said when he testified in support of Judge Hamilton:

       I have known David since his childhood. His father, 
     Reverend Richard Hamilton, was our family's pastor at St. 
     Luke's United Methodist Church in Indianapolis, where his 
     mother was the soloist in the choir. Knowing first-hand his 
     family's character and commitment to service, it has been no 
     surprise to me that David's life has borne witness to the 
     values learned in his youth.

  Senator Lugar knows Judge Hamilton's character. And the cases critics 
would use to savage it show nothing more than that Judge Hamilton 
understands, again in Senator Lugar's words, ``the vitally limited, 
role of the Federal judiciary faithfully to interpret and apply our 
laws, rather than seeking to impose their own policy views.''
  Critics have similarly twisted and disparaged Judge Hamilton's record 
on reproductive rights to paint him as an agenda-driven ideologue by 
pointing to a single case, A Woman's Choice v. Newman, 1995, even 
though in that case he carefully applied Supreme Court precedent.
  In A Woman's Choice, Judge Hamilton blocked enforcement of part of an 
Indiana abortion law that required pregnant women to make two trips to 
a clinic before having an abortion. Judge Hamilton applied the law set 
forth by the Supreme Court in Planned Parenthood v. Casey, 1992, and, 
after carefully examining the facts, concluded that many Indiana women 
would not be able to make a second trip to a hospital or a clinic. 
Therefore, under the standard in Casey--the standard that Chief Justice 
Roberts and Justice Alito pledged to follow as binding precedent when 
nominees before the Judiciary Committee--Judge Hamilton concluded that 
the law undermined a woman's constitutionally protected right to 
choose.
  Critics have seized on a split decision from the Seventh Circuit 
reversing Judge Hamilton's decision to grant a pre-enforcement 
injunction of the informed consent provision to mischaracterize his 
decisions in that case as activist. However, in reversing Judge 
Hamilton on the injunction, noted conservative icon Judge Easterbrook 
was criticized by another judge on the panel for ``disregard[ing] the 
standards that were established by the Supreme Court in [Casey]'' and 
was criticized for ``brush[ing] aside the painstakingly careful 
findings of fact'' that Judge Hamilton made. Even the concurring 
opinion recognized that Judge Easterbrook's opinion embraced dissenting 
opinions in other cases. Critics have also seized on a falsehood that 
Judge Hamilton blocked enforcement of the law for seven years, ignoring 
his modification of the initial injunction to permit Indiana to enforce 
most of its informed consent law after the Indiana Supreme Court ruled 
on a State law question of first impression that Judge Hamilton had 
certified so that he could be guided by the State's highest court on a 
question of State law, and ignoring Indiana's choice not to appeal 
Judge Hamilton's timely-issued decisions on the injunction until after 
trial, which Indiana had asked Judge Hamilton to postpone. Judge 
Hamilton's decisions in that case show that he was a careful judge 
showing appropriate deference to Indiana when addressing a matter of 
first impression in that State, not an ideologue or an activist.
  Senators painting a false picture of Judge Hamilton's record have 
also cherry-picked his long record on the bench of handling criminal 
cases to focus on one or two cases they assert show that he is too 
lenient on criminals. Like the other charges against Judge Hamilton, 
this does not hold up to scrutiny. In his 15 years on the bench, the 
government has appealed only 2 of the approximately 700 criminal 
sentences Judge Hamilton has handed down. Judge Hamilton's critics 
ignore cases like U.S. v. Turner, 2006, in which Judge Hamilton 
sentenced a child pornographer to 100 years in prison. They ignore U.S. 
v. Clarke, 1999, in which Judge Hamilton sentenced a defendant to 151 
months on three counts of drug distribution and an additional 60 months 
on a firearm charge, denying the defendant's motion for a reduced 
sentence citing the defendant's ``dangerous role in the distribution 
network.'' They ignore cases like U.S. v. Garrido-Ortega, 2002, in 
which Judge Hamilton sentenced a defendant to 70 months imprisonment 
for possession of counterfeit alien registration receipt cards and for 
being found in the United States as an alien previously deported after 
conviction, then denied the defendant's motion for reconsideration of 
sentence. They ignore decisions like U.S. v. Steele, 2009, U.S. v. 
Hagerman, 2007, and U.S. v. Ellis, 2007, in which Judge Hamilton 
imposed heavy sentences for drug dealing, obstruction of justice and 
for tax evasion. This charge against Judge Hamilton simply does not 
hold up.
  Finally, we have heard repeatedly the falsehood that Judge Hamilton 
is an activist judge who will try to amend the Constitution through 
``footnotes.'' However, Judge Hamilton testified in response to written 
questions from Senators that he believes that ``judges do not `add' 
footnotes to the Constitution'' and that ``constitutional decisions 
must always stay grounded in the Constitution itself.''
  In response to Senator Sessions, Senator Grassley and others, Judge 
Hamilton wrote:

       The phrase ``footnotes to the Constitution,'' described by 
     my late colleague Judge S. Hugh Dillin, refers to the case 
     law interpreting the Constitution. By that phrase, I believe 
     he meant that the general provisions of the Constitution take 
     on their life and meaning in their application to specific 
     cases, that the case law is not the Constitution itself, and 
     that constitutional decisions must always stay grounded in 
     the Constitution itself. In my view, judges do not ``add'' 
     footnotes to the Constitution itself. They apply the 
     Constitution to the facts of the particular case and add to 
     the body.

  Further, in response to another question from Senator Sessions, Judge 
Hamilton testified: ``I have not added footnotes to the Constitution. I 
believe the constitutional decisions I have made have been consistent 
with the express language and original intent of the Founding 
Fathers.'' I am hard-pressed to understand why Senators would ask such 
questions if they do not consider the nominee's clear answers.
  I hope that Senators now considering whether to support this well-
qualified mainstream nominee resist the partisan effort to build a 
straw man out of one or two opinions in a 15-year record on the bench. 
I hope they do not allow right wing talking points to overshadow Judge 
Hamilton's long and distinguished record on the bench. Instead, I urge 
Senators to heed the advice of Senator Lugar who urged that 
``confirmation decisions should not be

[[Page 28318]]

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.''
  This is a nomination that should be confirmed and should have been 
confirmed months ago. David Hamilton is a fine judge and will make a 
good addition to the United States Court of Appeals for the Seventh 
Circuit.
  Mr. President, I ask unanimous consent to have a copy of the 
Washington Post article to which I referred printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               [From the Washington Post, Nov. 19, 2009]

                       The GOP's No-Exit Strategy

                         (By E.J. Dionne, Jr.)

       Normal human beings--let's call them real Americans--cannot 
     understand why, 10 months after President Obama's 
     inauguration, Congress is still tied down in a procedural 
     torture chamber trying to pass the health-care bill Obama 
     promised in his campaign.
       Last year, the voters gave him the largest popular-vote 
     margin won by a presidential candidate in 20 years. They gave 
     Democrats their largest Senate majority since 1976 and their 
     largest House majority since 1992.
       Obama didn't just offer bromides about hope and change. He 
     made specific pledges. You'd think that the newly empowered 
     Democrats would want to deliver quickly.
       But what do real Americans see? On health care, they read 
     about this or that Democratic senator prepared to bring 
     action to a screeching halt out of displeasure with some 
     aspect of the proposal. They first hear that a bill will pass 
     by Thanksgiving and then learn it might not get a final vote 
     until after the new year.
       Is it any wonder that Congress has miserable approval 
     ratings? Is it surprising that independents, who want their 
     government to solve a few problems, are becoming impatient 
     with the current majority?
       Democrats in the Senate--the House is not the problem--need 
     to have a long chat with themselves and decide whether they 
     want to engage in an act of collective suicide.
       But it's also time to start paying attention to how 
     Republicans, with Machiavellian brilliance, have hit upon 
     what might be called the Beltway-at-Rush-Hour Strategy, aimed 
     at snarling legislative traffic to a standstill so Democrats 
     have no hope of reaching the next exit.
       We know what happens when drivers just sit there when 
     they're supposed to be moving. They get grumpy, irascible and 
     start turning on each other, which is exactly what the 
     Democrats are doing.
       Republicans know one other thing: Practically nobody is 
     noticing their delay-to-kill strategy. Who wants to discuss 
     legislative procedure when there's so much fun and profit in 
     psychoanalyzing Sarah Palin?
       Yet there was a small break in the Curtain of Obstruction 
     this week when Republican senators unashamedly ate every word 
     they had spoken when George W. Bush was in power about the 
     horrors of filibustering nominees for federal judgeships. On 
     Tuesday, a majority of Republicans tried to block a vote on 
     the appointment of David F. Hamilton, a rather moderate 
     jurist, to a federal appeals court.
       Sen. Jeff Sessions of Alabama explained the GOP's about-
     face by saying: ``I think the rules have changed.''
       That was actually a helpful comment, because the 
     Republicans have changed the rules on Senate action up and 
     down the line. Hamilton's case is just the one instance that 
     finally got a little play.
       Thankfully, this filibuster failed because some Republicans 
     were embarrassed by it. But Republican delaying tactics have 
     made Obama far too wary about judicial nominations for fear 
     of controversy. He is well behind his predecessor in filling 
     vacancies, a shameful capitulation to obstruction. There's 
     also the fact that the nomination of Christopher Schroeder as 
     head of the Justice Department's Office of Legal Policy, 
     which helps to vet judges, is snarled--guess where?--in the 
     Senate.
       Republicans are using the filibuster to stall action even 
     on bills that most of them support. Remember: The rule is to 
     keep Democrats from ever reaching the exit.
       As of last Monday, the Senate majority had filed 58 cloture 
     motions requiring 32 recorded votes. One of the more 
     outrageous cases involved an extension in unemployment 
     benefits, a no-brainer in light of the dismal economy. The 
     bill ultimately cleared the Senate this month by 98 to 0.
       The vote came only after the Republicans launched three 
     filibusters against the bill and tried to lard it with 
     unrelated amendments, delaying passage by nearly a month. And 
     you wonder why it's so hard to pass health care?
       Defenders of the Senate always say the Founders envisioned 
     it as a deliberative body that would cool the passions of the 
     House. But Sessions unintentionally blew the whistle on how 
     what's happening now has nothing to do with the Founders' 
     design.
       The rules have changed. The extra-constitutional filibuster 
     is being used by the minority, with extraordinary success, to 
     make the majority look foolish, ineffectual and incompetent. 
     By using Republican obstructionism as a vehicle for forcing 
     through their own narrow agendas, supposedly moderate 
     Democratic senators will only make themselves complicit in 
     this humiliation.

  The PRESIDING OFFICER. The Senator from Alabama is recognized.
  Mr. SESSIONS. Mr. President, we moved three judges through committee 
today, and I think, all in all, Senator Leahy is working us to death. 
But we are making some progress.
  I would note for the record, if anybody would like to know, there are 
21 circuit vacancies for circuit courts in America. The President has 
nominated 10 people for those vacancies. There are 76 district court 
vacancies, and as of November 16 the President has nominated 10. He has 
more vacancies than President Bush had at this time and he has 
nominated fewer people. But a lot of things are happening. They will 
catch up. You have to do backgrounds on nominees, and they should not 
just throw up names for the sake of throwing up names.
  Most of his nominations are receiving bipartisan support. 
Unfortunately, I have not been able to support Judge Hamilton, and I 
would like to explain a few of the things that concern me, particularly 
about his judicial philosophy and about his rulings. I think they are 
significant. I wish they weren't. He is not a bad person, but a lot of 
people in America today have a philosophy that I think is not 
appropriate for the Federal bench.
  In Hinrichs v. Bosma, Judge Hamilton enjoined or issued an order 
prohibiting the speaker of the Indiana House of Representatives, the 
duly elected speaker, from allowing a sectarian prayer, as he described 
it, because some of those prayers had mentioned Jesus Christ and 
therefore ``might advance a particular religion, contrary to the 
mandates of the Constitution.''
  Judge Hamilton also ordered the speaker to make sure to advise any 
officiant who is delivering a prayer that a prayer must be 
nonsectarian, must not advance any one faith or disparage another, and 
must not use ``Christ's name or title or any other denominational 
appeal.''
  I note parenthetically that every day we have a paid chaplain who 
commences the Senate with a prayer. Heaven knows we need it. Hopefully 
we recognize we need it. I notice the words up there on the wall, ``In 
God We Trust,'' haven't been chiseled out by the secularists as of this 
date. We are a nation that believes in freedom of religion, and the 
Constitution says Congress shall make no law respecting the 
establishment of a religion or prohibiting the free exercise thereof. 
We have ceased to balance that out, in my opinion, in some of these 
matters.
  So he made that ruling and that injunction to the speaker. In a later 
ruling denying the speaker's request to stay this injunction, Judge 
Hamilton produced a novel notion that prayers in the name of Jesus 
would be sectarian and, therefore, prohibited, but prayers in the name 
of Allah would not be sectarian and, therefore, would be allowed. They 
had an Islamic imam pray there in Indiana.
  This is what Judge Hamilton wrote:

       Prayers are sectarian in the Christian tradition when they 
     proclaim or otherwise communicate the beliefs that Jesus of 
     Nazareth was the Christ, the Messiah, the Son of God, or the 
     Saviour, or that he was resurrected, or that he will return 
     on Judgment Day or is otherwise divine.

  He went on to say:

       If those offering prayers in the Indiana House of 
     representatives choose to use the Arabic Allah . . . the 
     court sees little risk that the choice of language would 
     advance a particular religion or disparage others.

  In other words, that would be OK. I find it hard to justify that 
position intellectually, frankly. I am not saying he is anti-religion. 
I am saying this judge's approach to the law is confused about an 
important legal question involving religion.
  The Seventh Circuit reversed Judge Hamilton, finding that the 
taxpayers lacked standing to bring the lawsuit in the first place. The 
court of appeals did not reach the merits of the case, but

[[Page 28319]]

the question naturally arises: Why did Judge Hamilton skip over the 
very basic preliminary legal issue of standing and instead move 
directly to the merits of the case, if the standing didn't exist? I 
submit he perhaps desired to rule on the merits because he favored the 
outcome he produced.
  In A Woman's Choice v. Newman, Judge Hamilton succeeded in blocking 
the enforcement of a reasonable informed consent law for 7 years, an 
Indiana law. In 1995, the Indiana Legislature enacted a statute that 
required certain medical information to be provided to women seeking an 
abortion at least 18 hours prior to the procedure. The Supreme Court, 
in Planned Parenthood v. Casey, a very important case, had already held 
very similar requirements were constitutional and did not restrict the 
right to an abortion. It just required that the information provided to 
you 18 hours in advance. Notwithstanding the Supreme Court precedent, 
Judge Hamilton granted a preliminary injunction against enforcement of 
the law. In other words, he stopped the law from going into effect. He 
assumed the role of a legislator. He took out his judicial pen and 
struck some of the language from the statute, language he didn't like.
  The statute required that women receive this information in person, 
not through some third person. Judge Hamilton modified the injunction 
so as to prevent the State from enforcing the requirement that the 
information be provided ``in the presence of'' the pregnant woman. He 
later entered a permanent injunction that prohibited enforcement of the 
law, in essence vetoing the law.
  Finally, the case reached the Seventh Circuit. In an opinion by Judge 
Easterbrook, the court reversed, concluding that Judge Hamilton had 
abused his discretion. A Federal judge with a lifetime appointment has 
power over the States. If he says the Constitution is violated by what 
a State does, the judge has the power to invalidate what the State 
does. But this is an awesome power and ought to be used carefully. When 
this case reached the Seventh Circuit, this is what the opinion said:

       [F]or 7 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.

  If it is a bad law, the people would change it. They have the power 
to do so.
  I suggest that is a pretty stark criticism and a very serious one. 
One single judge has frustrated a law that was constitutional for 7 
years.
  In U.S. v. Woolsey, Judge Hamilton disregarded a defendant's prior 
conviction for a felony drug offense in order to avoid imposing a 
mandatory sentence of life imprisonment for persons convicted of a 
third felony drug offense. Here the defendant was convicted of drug and 
firearms offenses after police executed a search warrant at his home 
where they discovered a half pound of cocaine, 31 pounds of marijuana, 
2 pounds of methamphetamine--and that is a lot of methamphetamine--a 
cache of guns, and $16,000 in currency. Because the defendant had two 
prior felony drug convictions, the defendant was subject to recidivism 
penalties under Federal law. Judge Hamilton was reversed because he 
ignored one of those prior convictions, reversed unanimously by the 
circuit court on which he now wants to sit.
  This is what they said about his willfulness:

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

  They were saying: Judge, you have been letting your own personal 
views override what you are required to do by the law. You are a judge. 
You are supposed to follow the law. The oath you take is to serve under 
the Constitution and the laws of the United States. You are not above 
it.
  The opinion makes clear that Judge Hamilton either made several 
unnecessary errors or intentionally ignored the law.
  In Grossbaum v. Indianapolis-Marion County Building Authority, Judge 
Hamilton denied a request by a rabbi to place a menorah in a county 
building. A unanimous panel of the Seventh Circuit reversed Judge 
Hamilton's ruling, noting that two Supreme Court cases were directly on 
point.
  For 8 years the plaintiff in this case had been able to display a 
menorah during Chanukah until the ACLU challenged the display as 
violative of the first amendment. Because of the ACLU's challenge in 
1993, Marion County unanimously adopted a ``policy on seasonal 
displays.'' They set up a policy to try to make everybody happy. It was 
done to try to keep the courts happy by preventing a menorah from being 
displayed.
  In 1994, when the plaintiffs submitted a request to display the 
menorah, they were denied.
  Mr. President, I know my time is up, and I ask unanimous consent for 
1 additional minute.
  Mr. LEAHY. Provided there is another minute on this side.
  Mr. SESSIONS. I understand.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SESSIONS. Mr. President, there are other matters that I don't 
have time to go into in detail. Any nominee is entitled to a fair 
hearing. They ought not have their record distorted. As the Senator 
said, people can make mistakes sometimes. But I think the pattern is 
such that it indicates to me there are extraordinary circumstances that 
justify an objection to the nomination because the nominee has shown a 
willfulness to override the law. A judge must be under the law.
  I offer the following more detailed explanation to try to go into 
even more detail and to fairly analyze the judge's rulings and why I 
think they are unacceptable.
   There have been some accusations that we have mischaracterized Judge 
Hamilton's record, and, specifically, some of his cases. I would like 
to take just a few moments to explain why I am concerned about Judge 
Hamilton's judicial philosophy and demonstrate how we have not 
mischaracterized his rulings.
  In Hinrichs v. Bosma, 400 F. Supp. 2d 1103, S.D. Ind. 2005, the 
Indiana ACLU, representing some taxpayers, brought suit against the 
Speaker of the Indiana House of Representatives claiming that ``most'' 
of the prayers that opened legislative sessions were sectarian 
Christian prayers in violation of the first amendment. Although 29 out 
of 45 of the prayers for which there were transcripts were Christian, 
many prayers were offered by state legislators, a rabbi, and a Muslim 
imam.
  Nevertheless, Judge Hamilton enjoined the speaker from allowing 
sectarian prayers because some of them mentioned Jesus Christ and 
therefore might ``advance a particular religion, contrary to the 
mandate of the Establishment Clause.'' Judge Hamilton also ordered the 
speaker to advise any officiant that a prayer must be nonsectarian, 
must not advance any one faith or disparage another, and must not use 
``Christ's name or title or any other denominational appeal.''
  In so holding, Judge Hamilton relied on what I think is a flawed 
reading of the Supreme Court's decision in Marsh v. Chambers, 463 U.S. 
783, 1983, which held that a legislative body may open its session with 
a prayer, much like we do here in the Senate every day. Judge Hamilton 
said that the Marsh case did not expressly permit prayers that were 
``explicitly Christian or explicitly Jewish.'' But the Supreme Court in 
Marsh said:

       The content of the prayer is not of concern to judges where 
     . . . there is no indication that the prayer opportunity has 
     been exploited to proselytize or advance any one, or to 
     disparage any other, faith or belief. That being so, it is 
     not for us to embark on a sensitive evaluation or to parse 
     the content of a particular prayer.

  Judge Hamilton ignored the Supreme Court's clear directive that the 
content of such prayers should not be of concern to a judge. He had no 
concerns about whether he would parse through

[[Page 28320]]

the content by dictating from the bench what constitutes sectarian 
prayer. In fact, in a later ruling denying the speaker's request to 
stay the permanent injunction, Judge Hamilton came up with the radical 
notion that prayers in the name of Jesus Christ would be sectarian and 
therefore prohibited, but prayers in the name of Allah would not be 
sectarian and therefore allowed. He said:

       Prayers are sectarian in the Christian tradition when they 
     proclaim or otherwise communicate the beliefs that Jesus of 
     Nazareth was the Christ, the Messiah, the Son of God, or the 
     Savior, or that he was resurrected, or that he will return on 
     Judgment Day or is otherwise divine. . . .

He went on to say:

       If those offering prayers in the Indiana House of 
     Representatives choose to use the Arabic Allah . . . the 
     court sees little risk that the choice of language would 
     advance a particular religion or disparage others.

I find it hard to believe that anyone would not associate a reference 
to Allah with Islam.

  After full briefing and oral argument, the Seventh Circuit reversed 
Judge Hamilton's decision, finding that the taxpayers lacked standing 
to bring the lawsuit in the first place. The court of appeals did not 
reach the merits of the case, but the question naturally arises: Why 
did Judge Hamilton skip over the very basic, preliminary issue of 
standing and instead move directly to the merits of this case? I submit 
that Judge Hamilton wanted to get to the merits because he sought this 
particular outcome.
   In A Woman's Choice v. Newman, 904 F. Supp. 1434, S.D. Ind. 1995, 
Judge Hamilton succeeded in blocking the enforcement of a reasonable 
informed consent law for 7 years. In 1995, the Indiana legislature 
enacted a statute that required women seeking an abortion to receive 
certain medical information at least 18 hours prior to the abortion 
being performed. Specifically, the statute required that the women be 
informed of the following information:
  1. The name of the physician performing the abortion.
  2. The nature of the proposed procedure or treatment.
  3. The risks of and alternatives to the procedure or treatment.
  4. The probable gestational age of the fetus.
  5. The medical risks associated with carrying the fetus to term.
  6. The availability of fetal ultrasound imaging.
  7. That medical assistance benefits may be available for prenatal 
care . . . from the county office of the division of family resources.
  8. That the father of the unborn fetus is legally required to assist 
in the support of the child.
  9. That adoption alternatives are available and that adoptive parents 
may legally pay the costs of prenatal care, childbirth, and neonatal 
care.
   The Supreme Court in Planned Parenthood v. Casey, 505 U.S. 833, 
1992, had already held that very similar requirements did not restrict 
the access to abortions and that is an important point here.
  Despite the Casey decision, and an almost identical Seventh Circuit 
opinion upholding a Wisconsin statute, the plaintiffs filed a lawsuit 
challenging the constitutionality of the Indiana law on the grounds 
that it was likely to impose an undue burden on a woman's right to 
choose. I am not sure how knowing the name of the doctor who is 
performing an abortion imposes an undue burden. In support of their 
argument, the plaintiffs presented evidence that the law was likely to 
prevent abortions for approximately 11 to 14 percent of women who would 
otherwise choose to have them and the ``medical emergency'' exception 
would probably fail to meet constitutional standards as unduly narrow.
  Judge Hamilton granted the plaintiffs a preliminary injunction with 
certified questions to the Supreme Court of Indiana concerning the 
interpretation of the ``medical emergency'' exception under State law.
  The Indiana Supreme Court answered the certified questions and 
basically held that Indiana's law did not violate the Supreme Court 
holding in Casey. The Indiana Supreme Court concluded:

       the medical emergency provision of Public Law 187 permits 
     dispensing with the informed consent requirements when the 
     attending physician, in the exercise of her clinical judgment 
     in light of all factors relevant to a woman's life or health, 
     concludes in good-faith that medical complications in her 
     patient's pregnancy indicate the necessity of treatment by 
     therapeutic abortion. We add that the physician may do so 
     with respect to serious and permanent mental health issues. A 
     physician may not, however, dispense with the informed 
     consent provisions as to health problems when they are 
     temporary.

This holding by the Indiana. Supreme Court should have resolved the 
matter.
  Notwithstanding, Judge Hamilton assumed the role of a legislator, 
took out his judicial pen and struck some language from the Indiana 
statute. The statute required that women receive this information in 
person. Judge Hamilton modified the preliminary injunction that he had 
issued so as to prevent the State from enforcing the requirement that 
the information be provided ``in the presence'' of the pregnant woman. 
Judge Hamilton later entered a permanent injunction that prohibited 
enforcement of the law--in essence vetoing the law.
  Finally, the case reached the Seventh Circuit, which reversed Judge 
Hamilton's ruling. In a 2-1 opinion by Judge Easterbrook, the court 
concluded that Judge Hamilton abused his discretion:

       [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.

In a concurring opinion, Judge Coffee concluded:

       [Judge Hamilton's opinion which was] pronounced without the 
     support of even one citation to the record, invades the 
     legitimate province of the legislative and executive branches 
     and places a straitjacket upon their power to regulate and 
     control abortion practice. 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 momentous 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.

  Three different courts, including the Indiana Supreme Court, had 
looked at the Indiana statute and similar laws and concluded they 
passed constitutional muster. This apparently did not satisfy Judge 
Hamilton and so he ignored the precedent and ruled based on his own 
policy preferences.
   In United States v. Woolsey, 535 F.3d 540 (7th Cir. 2008), Judge 
Hamilton disregarded a defendant's prior conviction for a felony drug 
offense in order to avoid imposing a mandatory sentence of life 
imprisonment for persons convicted of a third felony drug offense. 
Judge Hamilton was reversed by a unanimous Seventh Circuit:

       [W]e 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.

  Here, the defendant was convicted of drug and firearms offenses after 
police executed a search warrant at his home, where they discovered a 
half pound of cocaine, 31 pounds of marijuana, 2 pounds of 
methamphetamine, a cache of guns and $16,000 in currency. Because the 
defendant had two prior felony drug convictions in 1997 and 1974, the 
defendant was subject to recidivism penalties under Federal statute.
  At sentencing, the government properly filed an enhancement 
information detailing the two prior convictions, which should have 
triggered a mandatory term of life imprisonment. Although the defendant 
conceded that his 1997 drug conviction would count for enhancement 
purposes, he contested the eligibility of the 1974 conviction. The 
defendant argued that he believed the 1974 conviction--possession with 
intent to distribute 125 pounds of marijuana--should have been set 
aside upon successful completion of his probation pursuant to the 
Federal Youth Corrections Act. The Federal Youth Corrections Act allows 
previous sentences to

[[Page 28321]]

be set aside in cases where there was an early discharge of probation 
and where the probationer had ``demonstrate[ed] good behavior to the 
sentencing court before the probationary period ended.''
  Here, the Arizona district court that had sentenced the defendant did 
not grant the early discharge. The defendant claimed this was an 
oversight, so Judge Hamilton postponed the defendant's sentencing to 
give him a chance to petition the Arizona court to have the 1974 
conviction cleared. According to the opinion reversing Judge Hamilton, 
``the Arizona court was not inclined to grant the request.'' We know 
the defendant had another conviction beyond 1974, so perhaps he did not 
meet the good behavior requirement.
  The Seventh Circuit also noted that the Federal statute:

     bars any challenge to the validity of any prior conviction 
     alleged under this section which occurred more than five 
     years before the date of the information alleging such prior 
     conviction . . . [The defendant] never denied the 1974 
     conviction, and the five-year window closed some time ago.

  At sentencing, Judge Hamilton chose to disregard the 1974 conviction 
and not impose a life sentence. He stated:

       I believe it is also appropriate under these circumstances 
     to not count the 1974 marijuana conviction for this purpose. 
     On that issue, with respect to both the guidelines and the 
     [federal statute], I will say that it seems to me that there 
     is no apparent reason in this record why the defendant should 
     not have been discharged early as to what is the customary 
     practice as was intended and, in essence, the Court ought to 
     treat as having been done what should have been done under 
     general equitable powers.

  The Seventh Circuit vacated the sentence and admonished Judge 
Hamilton: ``[the] Indiana district court was not free to ignore 
Woolsey's earlier conviction. . . . as Tuten makes clear, the court 
that imposed a sentence under the YCA should be the one to exercise the 
discretion afforded by the Act.'' The court further stated:

     sentencing is not the right time to collaterally attack a 
     prior conviction unless the prior conviction was obtained in 
     violation of the right to counsel-which [the defendant] does 
     not suggest. . . . Accordingly, the decision to disregard 
     [the defendant's] prior conviction in light of what the court 
     believed `should have been done' three decades earlier was 
     incorrect.

  I think this opinion makes it clear that Judge Hamilton either made 
several unnecessary errors in his ruling or intentionally ignored the 
rule of law because he did not like the sentence. I believe it was the 
latter of the two.
  In Grossbaum v. Indianapolis-Marion County Building Authority, 870 F. 
Supp. 1450 (S.D. Ind. 1994), Judge Hamilton denied a request by a rabbi 
to place a menorah in a county building. A unanimous panel of the 
Seventh Circuit reversed Hamilton's ruling and noted that two Supreme 
Court cases were directly on point.
  For 8 years the plaintiffs in this case had been able to display a 
menorah during Chanukah until the ACLU challenged the display as 
violative of the First Amendment. Because of the ACLU's challenge, in 
1993 Marion County unanimously adopted a ``policy on seasonal 
displays'' that prevented the menorah from being displayed. So in 1994 
when the plaintiffs submitted a request to display the menorah, their 
request was denied. The plaintiffs responded by filing a motion for a 
preliminary injunction to require the county building manager to allow 
them to display a menorah in the non-public-forum lobby of the 
building, something they had been allowed to do every holiday season 
between 1985 and 1992.
  Judge Hamilton denied the motion, stating that the First Amendment's 
free speech clause did not require Marion County to allow the display 
and that the county was reasonable in believing the establishment 
clause prohibited it from doing so. He refused to apply controlling 
Supreme Court precedent and instead embraced what appears to be an 
evolving standard based on something other than the law. He said: 
``[o]ne of the challenges . . . is to keep the structure of abstract 
analytic categories and logical tests in touch with the practical 
realities before the courts.''
  Judge Hamilton also ruled that Marion County's policy was a 
permissible ``subject matter restriction'' under the first amendment, 
rather than prohibited ``viewpoint discrimination.'' Specifically, he 
decided that the county could put up its own ``secular holiday 
symbol,'' a Christmas tree, while excluding anyone from expressing a 
religious view of the holiday season. He then concluded that the county 
could choose to avoid the controversy that might be provoked by the 
display of religious symbols and that ``practical considerations'' 
justified his reading of the Constitution. Indeed, Judge Hamilton 
stated that the plaintiff's position could not be correct because, if 
it were, the result would be that:

       every time a government [put] up a Christmas tree (or 
     perhaps a wreath or some evergreen branches) in a ``nonpublic 
     forum,'' that government [would have] extended an open 
     invitation to all interested private parties to display the 
     religious symbols of their choice in the same area. As a 
     practical matter, that result would be dramatic.

  In an opinion by Judge Ripple, the Seventh Circuit unanimously 
reversed. The court rejected Judge Hamilton's attempts to distinguish 
the case from the Supreme Court's decisions in Rosenberger and Lamb's 
Chapel, holding that the prohibition of the menorah's message because 
of its religious perspective was unconstitutional viewpoint 
discrimination. The court found that the county's policy:

       ``clearly concerns `seasonal displays' in its government 
     building. The policy . . . clearly is a prohibition of one 
     type of seasonal display, namely religious displays and 
     symbols.''

  The Seventh Circuit also said:

     the court's colloquy with counsel at oral argument made it 
     quite clear that the policy challenged here was to prevent 
     one thing: seasonal holiday displays of a religious 
     character.

  Because neutrality and equal access to the nonpublic forum lobby 
avoided establishment clause problems, the Seventh Circuit held the 
county's establishment clause defense was insufficient.
  The Seventh Circuit saw very clearly what Judge Hamilton seems to 
have been far too distracted by ``practical realities'' to realize--
that the government policy in question was based solely on the 
viewpoint expressed and, thus, was unconstitutional. Judge Hamilton, by 
all accounts, has a talented legal mind. Therefore, I can only conclude 
that the ``practical reality'' Judge Hamilton was so concerned with 
was, in fact, the result he wanted to reach.
  Finally, in United States v. Rinehart, 2007 U.S. Dist. LEXIS 19498, 
S.D. Ind. February 2, 2007, the defendant, a police officer who filmed 
himself having sex with a minor and took pictures of another minor, 
pled guilty to two counts of producing child pornography. Although 
Judge Hamilton sentenced him to the mandatory minimum of 15 years in 
prison, he took the highly unusual step of issuing a separate written 
opinion ``so that it may be of assistance in the event of an 
application for executive clemency,'' an action that Judge Hamilton 
called ``appropriate.''
  The defendant, a 32-year-old cop, engaged in ``consensual'' sexual 
relations with two young girls, ages 16 and 17. According to Judge 
Hamilton's opinion, the sexual relationships were legal under State and 
Federal law. However, the defendant took photos and videos of himself 
and the girls engaged in ``sexually explicit conduct'' and sexual 
relations. These images were found on his home computer and he was 
charged under the Child Protection Act of 1984.
  In his written opinion, Judge Hamilton noted his disapproval of the 
mandatory minimum and concluded by expressly injecting his personal 
views into the case:

       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 15 year sentence required by [the Child 
     Protection Act of 1984] 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.

  That last sentence embodies precisely the type of activist philosophy 
that I have been talking about. But here, we do not need to read 
between the lines. We do not need to infer a

[[Page 28322]]

thing. Judge Hamilton laid it on in an opinion. And the opinion had the 
express aim of urging the executive to adopt his policy preferences. 
When a judge steps outside of his coinstitutional role of interpreting 
and applying the law as written, he undermines the entire justice 
system.
  These are just a few of the problematic cases in Judge Hamilton's 
record. To date, the Seventh Circuit has been able to reverse these 
errors, but if he is elevated, only the Supreme Court will be able to 
reverse most of his errors. I am afraid the Supreme Court might not 
hear some of them. This body should elevate those judges who have 
performed admirably during lower court service, not those who have 
performed poorly.
  I yield the floor.
  Mr. CORNYN. Mr. President, I will not support Judge David Hamilton's 
elevation to the Court of Appeals for the Seventh Circuit. After close 
review, I believe Judge Hamilton's writings and statements show an 
unwillingness to serve as a neutral arbiter of the law.
  At the time he was appointed to the district court for the Southern 
District of Indiana, the American Bar Association rated Judge Hamilton 
``not qualified.'' This rating is still apt.
  In numerous opinions written during his tenure on the district court, 
Judge Hamilton has displayed a lack of impartiality, a disregard for 
precedent, and a willingness to legislate from the bench. His writings 
also evince his propensity to value ``an understanding of the world 
from another's point of view'' above an understanding of the facts of a 
case.
  For instance, in striking down Indiana's popularly enacted informed-
consent abortion law, Judge Hamilton radically ruled that the law 
unconstitutionally imposed an ``undue burden'' on the right to an 
abortion because it qallegedly forced ``women to make two trips to a 
clinic.'' A Woman's Choice v. Newman, 132 F.Supp.2d 1150, 1151, S.D. 
Ind. 2001. In making this ruling, Judge Hamilton flaunted the directly 
applicable precedents of the Supreme Court and the Seventh Circuit. He 
also, according to Seventh Circuit opinion that reversed his ruling, 
relied on a ``faulty study by biased researchers who operated in a 
vacuum of speculation.'' A Woman's Choice v. Newman, 305 F.3d 684, 689, 
7th Cir. 2002.
  Similarly, in a case where a child's complaint to school officials 
about her mother's drug abuse led to the mother's arrest, Judge 
Hamilton suppressed the drug evidence against the mother on the ground 
that the police had violated her substantive due process right to 
``family integrity.'' United States v. McCotry, 2006 U.S. Dist. LEXIS 
62777, S.D. Ind., July 13, 2006. To reach this conclusion, Judge 
Hamilton ignored controlling Seventh Circuit law and relied instead on 
the dissenting opinions of Ninth Circuit judges. And when the Seventh 
Circuit reversed Judge Hamilton, it chastised him for not properly 
considering the wrongs of the mother in the case, who ``risked her 
relationship with her nine-year old daughter by dealing drugs.'' United 
States v. Hollingsworth, 495 F.3d 795, 803 n.3, 7th Cir. 2007.
  In these cases, and many more, Judge Hamilton has shown an 
unvarnished result-orientation and has confirmed his reputation as 
``one of the more liberal judges in the district.'' Almanac of the 
Federal Judiciary. This record has not earned him the honor of 
elevation to a higher court.
  As President Obama's first nominee, there is no doubt that Judge 
Hamilton possesses the empathy and desire to write ``footnotes to the 
Constitution'' that catch the eye of liberal activists and partisan 
politicians. But these qualities are not ones that a Circuit Judge of 
the United States should possess. Accordingly, I will vote no on the 
confirmation of Judge David Hamilton.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, as I sit here and listen, I wonder who in 
Heaven's name they are talking about. Judge Hamilton had 8,000 cases. 
Apparently, there is no problem with any of them except for a tiny 
handful of cases, and those have been so distorted by Judge Hamilton's 
opponents that I don't even understand them. Basically, I think they 
are saying what he should have done is gone by his personal beliefs and 
not the law. Of course, then they could say he was an activist judge.
  He is in a situation where they will try and get him either way. A 
judge can follow the law, do what they are supposed to do, try 8,000 
cases, get strong support from people from the right to the left, and 
get the highest possible rating a judge can get. But don't worry. We 
are going to take some case or two out of context from their 15 years 
on the bench. We will ignore 8,000 cases. We will call them a gender-
driven ideologue. We will point to a single case, even though in that 
case they carefully applied Supreme Court precedent.
  Come on. Let's be fair. Eight thousand cases, the highest rating 
possible, endorsed by everybody who knows him, and strongly backed by 
Senators Lugar and Bayh. Judge Hamilton is not an ideologue. 
Apparently, there is no problem with any of his 8,000 cases except a 
couple that people have taken out of context. We should be the 
conscience of the Nation. We are above that, and we should vote for his 
confirmation.


                           Amendment No. 2785

  Mr. President, I also want to take a couple of minutes to speak 
against Senator Coburn's amendment to the veterans health bill we will 
be voting on shortly.
  Senator Akaka has already explained that we do not need the Coburn 
amendment to fund the programs in this veterans health bill. So do not 
be misled by the suggestion that we need to cut funding for the United 
Nations to care for our veterans. That is a false choice.
  This is nothing more than a ploy to take a swipe at the United 
Nations. Senator Coburn spoke earlier, and his statement consisted of a 
laundry list of factual inaccuracies about the United Nations.
  Is the United Nations perfect? Far from it. But legitimate criticism 
is one thing. Inventing facts is another. To say that the U.N. 
Development Program provided millions of dollars to North Korea which 
used the funds to ``purchase conventional arms and ballistic 
missiles,'' when there is no proof of that, does not belong in this 
debate..
  I would say to those Senators who think the United States should not 
fulfill its treaty obligations to the United Nations, who think we 
should renege on our commitments to support U.N. peacekeeping missions, 
and who favor walking away from our pledges to NATO, the International 
Atomic Energy Agency, the World Health Organization, and many other 
organizations we were instrumental in creating, then vote for this 
misguided amendment.
  But if Senators believe that United States leadership in the world 
means paying our share and being able to use our influence, then I urge 
Senators to oppose it.
  Our assessed contributions to the United Nations, which the Coburn 
amendment would cut, support a wide range of activities that advance 
our own national interests. That was as true during the Bush 
Administration, which would have opposed this amendment, as it is 
today. The State Department opposes this amendment.
  Here are some examples of what the funds are used for by the U.N. and 
other international organizations that Senator Coburn's amendment would 
cut:
  Preparing for and holding elections in Iraq.
  Monitoring nuclear programs in North Korea and Iran. Do we really 
want to cut funding for the international nuclear inspectors who Iran 
finally allowed into one of their facilities?
  Supporting NATO. I can't imagine any Senator wants to cut our 
contribution to NATO, when we are asking our NATO allies to do more in 
Afghanistan.
  Funding 17 U.N. peacekeeping missions, including in Haiti, Liberia, 
Lebanon, Darfur and the Congo. We don't contribute troops for these 
missions other nations like Bangladesh and Morocco do. But they rely on 
us to pay our share of the cost, and it is a lot less expensive than 
sending our own troops.
  Supporting the Food and Agriculture Organization's forecasts of 
global food

[[Page 28323]]

production, identifying areas of drought and famine, to provide 
emergency food assistance.
  Coordinating tsunami and earthquake relief in Indonesia and Pakistan.
  Supporting the World Health Organization's work to detect outbreaks 
of avian flu and Swine Flu and other infectious diseases and defending 
against a world pandemic.
  Creating and maintaining protections for the intellectual property 
rights of American companies.
  Coordinating international aviation safety standards.
  Coordinating efforts by the global shipping industry and governments 
to prevent and respond to acts of piracy on the high seas.
  These are organizations that are advancing our own interests.
  President Obama has stated his commitment that the U.S. will pay its 
dues to U.N. peacekeeping and international organizations. The 
Appropriations Committee has acted on that commitment. We are once 
again in good financial standing at the United Nations. This amendment 
would put us back in arrears.
  Our dues to the United Nations and other international organizations 
are treaty obligations. Not paying is not an option.
  Let's stop acting like the United States doesn't matter. Let's not 
say that because the U.N. isn't perfect, we should cut our dues.
  We are the world's leading military and economic power, and there is 
much we can achieve on our own. But we cannot stop genocide in Darfur 
alone any more than we can stop the spread of HIV/AIDS without the 
cooperation of other nations.
  We need to lead by example in the United Nations, in NATO, at the 
World Health Organization, the International Atomic Energy Agency, the 
Organization for the Prevention of Chemical Weapons, the Food and 
Agriculture Organization, the World Intellectual Property Organization. 
We can't do that without paying what we owe.
  This body has already voted for the funds to support United Nations 
peacekeeping and these international organizations. Senator Coburn's 
amendment would cut those funds.
  I also want to set the record straight on another misstatement of 
Senator Coburn's. He said his amendment to the fiscal year 2008 State 
and Foreign Operations appropriations bill was unanimously passed and 
then dropped in conference. It was not dropped in conference.
  His amendment would have withheld all U.S. contributions to 
international organizations. The House and Senate conferees did not 
support that. What emerged from conference was a 10 percent withholding 
of funds, still tens of millions of dollars, tied to audits, budget 
reports, and oversight. It also withheld 20 percent of the U.S. 
contribution to the U.N. Development Program.
  Was it everything Senator Coburn wanted? No. Was it dropped in 
conference? No. The substance of his amendment was included in the 
conference agreement, and for the benefit of anyone who cares to read 
it, it is section 668 of Public Law 110-161.
  I agree with Senator Akaka and urge Senators to oppose the Coburn 
amendment.
  Mr. President, I strongly join Senators Lugar and Bayh in the support 
of Judge Hamilton.
  I yield back any time.
  The PRESIDING OFFICER (Mr. Begich). All time is expired.
  The question is, Will the Senate advise and consent to the nomination 
of David F. Hamilton, of Indiana, to be U.S. circuit judge for the 
Seventh Circuit?
  Mr. LEAHY. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Montana (Mr. Baucus), 
and the Senator from West Virginia (Mr. Byrd) are necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 59, nays 39, as follows:

                      [Rollcall Vote No. 350 Ex.]

                                YEAS--59

     Akaka
     Bayh
     Begich
     Bennet
     Bingaman
     Boxer
     Brown
     Burris
     Cantwell
     Cardin
     Carper
     Casey
     Conrad
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Franken
     Gillibrand
     Hagan
     Harkin
     Inouye
     Johnson
     Kaufman
     Kerry
     Kirk
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lugar
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Specter
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Warner
     Webb
     Whitehouse
     Wyden

                                NAYS--39

     Alexander
     Barrasso
     Bennett
     Bond
     Brownback
     Bunning
     Burr
     Chambliss
     Coburn
     Cochran
     Collins
     Corker
     Cornyn
     Crapo
     DeMint
     Ensign
     Enzi
     Graham
     Grassley
     Gregg
     Hatch
     Hutchison
     Inhofe
     Isakson
     Johanns
     Kyl
     LeMieux
     McCain
     McConnell
     Murkowski
     Risch
     Roberts
     Sessions
     Shelby
     Snowe
     Thune
     Vitter
     Voinovich
     Wicker

                             NOT VOTING--2

     Baucus
     Byrd
       
  The nomination was confirmed.
  The PRESIDING OFFICER. The President will be immediately notified of 
the Senate's action.

                          ____________________