Executive Session

Floor Speech

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Mr. GRASSLEY. Mr. President, I oppose the nomination of Judge David Hamilton to be a Seventh Circuit Appeals Court judge. I have serious concerns about this nomination and will be voting not to confirm him.

During his time as a Federal judge on the U.S. District Court for the Southern District of Indiana, Judge Hamilton has issued a number of highly controversial rulings and, more importantly, has been reversed in some very prominent cases. In my opinion, these decisions strongly indicate that Judge Hamilton is an activist judge who will ignore the law in favor of his own personal ideology and beliefs.

For example, in one case, Judge Hamilton succeeded in blocking enforcement of an informed consent law for 7 years. In that case, called A Woman's Choice v. Newman, Judge Hamilton struck down an Indiana law requiring that certain medical information be given to a woman in person before an abortion can be performed. The Seventh Circuit overruled Judge Hamilton's decision, stating:

For 7 years, Indiana law 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 was the circuit court overturning Judge Hamilton. It seems to me that Judge Hamilton went out of his way to make his finding and actually block the Indiana law. That is not the proper role of a judge.

In addition, Judge Hamilton has shown hostility against the expression of religion in the public square. In two prominent cases, he ruled against public prayer in the State legislature and religious displays in public buildings, and in both cases he was reversed. In the case of Hinrichs v. Bosma, Judge Hamilton enjoined the speaker of the Indiana house of representatives from permitting sectarian prayer. Judge Hamilton ruled that the Indiana State legislature was prohibited from starting its session with prayers, specifically those that expressly mentioned Jesus Christ, but that it would be permissible for a prayer to mention Allah. The Seventh Circuit overturned Judge Hamilton's decision in Hinrichs, and subsequently the Indiana house passed a resolution 85-to-0 opposing Judge Hamilton's ruling.

Then in Grossbaum v. Indianapolis-Marion County Building Authority, Judge Hamilton ruled that a county could prohibit the display of a menorah in a nonpublic forum. The Seventh Circuit unanimously reversed Judge Hamilton, noting that the judge disregarded relevant Supreme Court precedent to reach his ruling and that he failed to recognize a rabbi's first amendment right to display the menorah as symbolic religious speech.

Judge Hamilton also ignored clear statutory mandate so he could impose his own personal beliefs when sentencing criminal defendants. Example: In the 2008 case U.S. v. Woolsey, Judge Hamilton disregarded an earlier conviction in order to avoid imposing a life sentence on a repeat drug offender. The Seventh Circuit reversed the decision, admonishing Judge Hamilton, specifically stating that he was ``not free to ignore'' prior conviction because ``statutory penalties for recidivism ..... are not optional, even if the court deems them unwise or an inappropriate response to repeat drug offenders.''

In another case, U.S. v. Rinehart, Judge Hamilton used his court opinion to request clemency for a police officer who pled guilty to two counts of producing child pornography. In this case, the police officer had engaged in and videotaped ``consensual'' sex with two teenagers.

In addition, in writings and speeches, Judge Hamilton has indicated that he approves of the concept that judges should make policy from the bench. For example, he has embraced President Obama's empathy standard, a standard so radical that even the new Supreme Court Justice Sotomayor had to rebuke it at her confirmation hearings. In response to written questions for his confirmation hearing, Judge Hamilton answered this way:

Federal judges take an oath to administer justice without respect to persons, and to do equal right to the poor and to the rich. Empathy--to be distinguished from sympathy--is important in fulfilling that oath. Empathy is the ability to understand the world from another person's point of view. A judge needs to empathize with all parties in cases--plaintiff and defendant, crime victims and accused defendant--so that the judge can better understand how the parties came to be before the court and how legal rules affect those parties and others in similar situations.

To empathize with the parties is not the proper role of a judge. Rather, the proper role of a judge is to apply the law to the facts in an impartial manner, and that is what we refer to as blind justice.

Further, in a 2003 speech, Judge Hamilton endorsed the idea that the role of a judge includes ``writing footnotes to the Constitution'' through evolving case law. He said:

Judge S. Hugh Dillin of this court has said that part of our job here as judges is to write a series of footnotes to the Constitution. We all do that every year in cases large and small.

Oddly enough, the last time I checked, it was the role of Congress to write laws, not the judicial branch. Judge Hamilton's personal bias has been noted by lawyers who practice before him. In fact, statements of local practitioners in the Almanac of the Federal Judiciary described Judge Hamilton as ``the most lenient of any judges in the district.'' Another quote: ``One of the more liberal judges of the district.'' Another quote: ``Goes out of his way to make the defendant comfortable.'' Another quote: ``He is your best chance for downward departures.'' Lastly, ``in sentencing, he tends to be very empathetic to the downtrodden, or to those who commit crimes due to poverty.''

Contrary to how the White House has tried to characterize Judge Hamilton, I believe that the record amply demonstrates that Judge Hamilton is an activist judge. He has taken radical positions, and a number of his rulings indicate that Judge Hamilton will impose his own personal beliefs and values in cases. We should not promote an individual whose track record clearly demonstrates that he will carry out an outside-of-the-mainstream personal agenda on the Federal appeals court. For these reasons, I will oppose the nomination of Judge Hamilton to the Seventh Circuit. If he was going to serve on a circuit, as many times as he has been overruled, it would be more appropriate for him to be on the Ninth Circuit, where a lot of those decisions on appeal are overturned by the Supreme Court--about 9 times out of 10.

I yield the floor.

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