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Controversial court nominee passes Senate test

Democrats crush a Senate filibuster against an appeals court nominee, demonstrating to Republicans they can't stop President Obama from turning the federal judiciary to the left.
/ Source: The Associated Press

Democrats on Tuesday crushed a Senate filibuster against a controversial appeals court nominee, demonstrating to Republicans they can't stop President Barack Obama from turning the federal judiciary to the left.

The 70-29 vote limited debate over the qualifications of U.S. District Judge David Hamilton of Indiana, and assured his elevation to the Chicago-based appeals court. Sixty votes were needed to end the filibuster, but confirmation only requires a simple majority of the 100-member Senate.

Ten Republicans went against their own party leaders and voted to limit debate.

The vote emphatically warned Republicans that with only 40 senators, they're too outnumbered to prevent Obama from making major inroads into a judiciary that was populated over eight years with conservative judges chosen by President George W. Bush.

Republicans have objected to holding a vote on Hamilton's confirmation since June, when the Judiciary Committee reported his nomination favorably to the full Senate.

Conservative Republican senators and their judicial-watching outside groups then launched a major political assault on Hamilton.

Religious rulings criticized
They criticized his rulings against Christian prayers in the Indiana legislature and against a menorah in the Indiana Municipal Building's holiday display.

Conservatives were furious that Hamilton struck down part of an Indiana law requiring women to make two trips to a clinic for counseling before they could get an abortion. He said the requirement placed an undue burden on a woman's constitutional right to choose to end a pregnancy.

Beyond the political message, the filibuster effectively ended a bipartisan accord reached in 2005, when 14 senators signed onto a deal that effectively stopped Democratic filibusters of Bush's judicial nominees except in extraordinary circumstances.

Sen. Patrick Leahy, D-Vt., chairman of the Judiciary Committee, said the Republican opposition was "more of the partisan, narrow, ideological tactics that Senate Republicans have been engaging in for decades as they try to pack the courts with ultraconservative judges."

The Senate confirmed 326 of Bush's court nominees. There are 876 court seats, mostly for the regionally based courts of appeals and lower district courts.

Sen. Jeff Sessions, R-Ala., who led the opposition to Hamilton, argued that Hamilton's record met his definition of extraordinary circumstances.

He not only attacked Hamilton's judicial record, but criticized his work in the distant past: vice president for litigation and board member of the American Civil Liberties Union in Indiana; and a fundraiser for two months for the Association of Community Organizations for Reform Now (ACORN).

Both liberal groups set off raw emotions among conservative Republicans.

Hamilton's confirmation by itself will not have a large political effect. The 7th Circuit appellate court, which serves, Illinois, Indiana and Wisconsin, has seven judges nominated by Republican presidents — while Hamilton would be the fourth chosen by a Democrat.

Last week, the Senate confirmed U.S. District Judge Andre Davis of Baltimore for the appeals court based in Richmond, Va., giving Democratic nominees a 6-5 edge on the 4th Circuit that once was a conservative legal bastion.

Other appellate courts are close to a political turnaround:

  • The New York-based 2nd Circuit, with 13 seats, currently has five Republican-nominated judges, four Democrats and four vacancies. One nominee for a vacancy is pending.
  • The 3rd Circuit, centered in Philadelphia, has 14 seats and is evenly divided politically, six and six. Obama nominees in the pipeline would fill the two open seats.
  • The Boston-based 1st Circuit has six seats, with three Republican and two Democratic-nominated judges. Obama has made a nomination for the vacancy.

Obama also could have a second Supreme Court nominee if Justice John Paul Stevens, 89, decides to retire after the current term.

Obama, however, has been much slower than Bush in sending the Senate nominees to fill court vacancies.

By Nov. 16, 2001, Bush — in his first year as president — made 64 nominations to the district and appellate courts. Obama has made 26, according to figures compiled by the liberal Alliance For Justice.

Eighteen Bush court nominees were confirmed by that date, compared to seven Obama nominees — including Supreme Court Justice Sonia Sotomayor.

There are 98 vacancies for district and appellate courts and 19 nominees pending for those open seats.