Senate Floor Statement of Senator Lugar Lugar floor statement on Judge David Hamilton Monday, November 16, 2009 U.S. Sen. Dick Lugar will deliver the following speech on the Senate floor at 4:00 p.m. today in support of Judge David Hamilton’s nomination to serve on the United States Court of Appeals for the Seventh Circuit.   Mr. President, I rise today to speak on behalf of Judge David Hamilton, whom the President has nominated to serve on the United States Court of Appeals for the Seventh Circuit.    I first had the pleasure of supporting David Hamilton almost 15 years ago, when he was nominated to the Federal District Court. I said then that “the high quality of his education, legal experience, and character well prepare him for this position,” and expressed my belief that “his keen intellect and strong legal background will make him a great judge.” This confidence in David Hamilton’s character and abilities was shared by all who knew him, regardless of political affiliation, throughout Indiana’s legal and civic communities.    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.   David graduated with honors from Pennsylvania’s Haverford College, won a Fulbright Scholarship to study in Germany, and then earned his law degree at Yale. After clerking for the Seventh Circuit Court, David joined the Indianapolis office of Barnes & Thornburg where he became a partner and acquired extensive litigation experience in the Indiana and Federal judicial systems. When our colleague Senator Evan Bayh was elected Governor of Indiana, he asked David to serve as his Chief Legal Counsel. Among other achievements in that role, David supervised the overhaul of State ethics rules and guidelines, and coordinated judicial and prosecutorial appointments.   In the latter capacity, David worked closely with Judge John Tinder, then a Reagan-appointee to the district bench, whom President Bush recently appointed to the Seventh Circuit with the unanimous support of the Judiciary Committee and the full Senate. When David was nominated to the district court, Judge Tinder wrote to me that David was “meticulous in asking the difficult questions of and about judicial nominees,” and that his approach to these duties “typifies the deliberate and sensitive way in which he approaches matters in his professional life.”   The same is true of David’s approach to his judicial duties. Leading members of the Indiana bar testify to his brilliance and, as important, to his character, dedication and fairness. Geoffrey Slaughter, President of the Indiana Federalist Society, also endorsed Judge Hamilton’s nomination saying, “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.” His colleagues on the Southern District of Indiana bench, a talented and exceptionally collegial group from both parties, unanimously endorse that conclusion.    I recognize that some of my colleagues do not share this view. Specific charges have been levied that Judge Hamilton has used his position on the federal courts to drive a political agenda. I believe a closer look at his record will reveal that Judge Hamilton has not been a judicial activist and has ruled objectively and within the judicial mainstream.   Upon receiving a letter from my good friend and colleague the Ranking Member of the Senate Judiciary Committee, I asked Indianapolis attorney and former Associate Counsel to President Ronald Reagan, Peter Rusthoven, to review concerns raised regarding David Hamilton’s nomination.    Judge Hamilton has been criticized for a speech delivered in 2003 when cited that Judges “write a series of footnotes to the Constitution.” It has been suggested that this comment is evidence of a judicial activist philosophy. However, Judge Hamilton never wrote that judicial decisions are an appropriate means to change the Constitution. The footnotes comment means simply that judicial decisions illustrate how the Constitution applies to particular circumstances. For example, Chief Justice Marshall’s seminal Marbury v. Madison decision, establishing judicial authority to pass on the constitutionality of actions by the Political Branches, illustrates a vital aspect of how the Constitution applies, but does not assert judicial power to amend the Constitution, much less based on a judge’s personal views.   Another charge levied is that Judge Hamilton prohibited public prayers involving Jesus Christ but allowed prayers invoking Allah. However, Judge Hamilton did not say, as some suggest, that prayers in the Indiana Legislature to “Allah” as the Muslim deity were permissible while prayers to Jesus Christ were not. He in fact said that using Allah as a generic reference to the deity could theoretically be permissible in non-sectarian prayer, as would be true of using the word for God in any language. Judge Hamilton was clear that legislative prayer advancing the religion of Islam would be prohibited. I support a more permissive approach to public prayer than Judge Hamilton, but clearly his ruling comports with Supreme Court authority. As Justice Antonin Scalia explained, government-sponsored endorsements of religion are sectarian if they “specify details upon which men and women who believe in a benevolent, omnipotent Creator and Ruler of the world are known to differ (for example the divinity of Jesus Christ).”   Also contrary to certain charges, Judge Hamilton’s ruling on the issue was not reversed. The Seventh Circuit’s later reversal did not involve the merits, but the separate, procedural issue of whether the taxpayer plaintiffs had legal standing to challenge the legislative practice. In this case, a subsequent Supreme Court ruling created a new precedent which led to the reversal.   A similar reversal situation occurred regarding an effort to compel local officials to include a Menorah as part of a holiday display in the Indianapolis City-County Building. The Seventh Circuit opinion by Reagan-appointee Judge Ripple makes this point in its opening paragraph, saying Judge Hamilton’s ruling had been made “without the benefit of the Supreme Court’s recent guidance in this area.”   There have also been claims, citing the Almanac of the Federal Judiciary, that Judge Hamilton is one of the most lenient judges in his district in criminal matters. However, the Almanac cited extraordinarily high praise for Judge Hamilton. The Almanac summary states: “Hamilton is fair when it comes to sentencing, according to lawyers.” Practitioners consistently stated that he is objective and shows no bias.    In demonstrating this alleged leniency, critics have cited a case in which Judge Hamilton “used his opinion to request clemency for a police officer who pled guilty to two counts of producing child pornography.” Judge Hamilton in fact imposed the 15-year sentence required by sentencing guidelines even though he believed it excessive in the circumstances. Doing what the law requires even when a judge may personally disagree is a textbook example of judicial restraint. Further, there were, indeed, circumstances in the casethat might properly be considered in a later executive clemency request, which is all that the unpublished decision was pointing out. In other cases with different circumstances, Judge Hamilton has imposed rigorous sentences for child pornography as long as 100 years.   Critics also point to another case in which they argue that Judge Hamilton disregarded an earlier conviction in order to avoid imposing a life sentence on a repeat offender. In this particular case, Judge Hamilton made a mistake and has admitted it. Judge Hamilton initially imposed a 25-year sentence for drug and firearms offenses on a 55-year-old man taking into account a 10-year-old prior conviction. The issue was whether the sentence should be further enhanced based on 35-year-old prior conviction on marijuana charges under the now repealed Federal Youth Corrections Act. Judge Hamilton now believes the Seventh Circuit was correct to apply a sentence enhancement, and he imposed a life sentence on remand.    Another complaint is that Judge Hamilton used his position to purposely delay enforcement of Indiana’s informed consent abortion laws for seven years. Judge Hamilton’s analysis in the Indiana case differs from my own, but his actions were defensible in the context of what lower courts must do in the field of abortion law jurisprudence.   As those who believe Roe v. Wade was fundamentally mistaken would argue, “undue burden” issues of the sort Judge Hamilton and the Seventh Circuit wrestled with in the Indiana litigation are an unfortunate, inevitable consequence of what Justice Scalia has called the Supreme Court’s continued effort to craft an “abortion code” without grounding in the text of the Constitution. Hence, it is hardly surprising that jurists will come out on different sides of undue burden inquiries. They necessarily entail judges weighing what is or is not undue by a standard that is unguided by any constitutional language. The Supreme Court itself continues to struggle to articulate tests that will elucidate this matter of law.    One illustration of that point is that five members of the full Seventh Circuit – including Judge Posner, a Reagan appointee – voted to grant rehearing en banc of the 2-1 decision reversing Judge Hamilton’s ruling. Further, even in reversing, the Seventh Circuit did not hold that Judge Hamilton’s fact findings were “clearly erroneous,” which is the pertinent appellate review standard on evidentiary questions.   The delay assertion unfairly ignores that the delay was due in very large part to litigation decisions made by the State of Indiana itself. Judge Hamilton’s preliminary injunction decision in 1995 was immediately appealable by the State as a matter of right; but the State chose not to appeal. The same was true of Judge Hamilton’s 1997 decision modifying that injunction; again, the State chose not to appeal. Thereafter, the State as well as the plaintiffs sought continuances of the trial, including to permit further discovery on complex statistical issues that are an aspect of the undue burden analysis. The notion that Judge Hamilton was in any way trying personally to delay the case, whether based on his personal views on any issue or for any other reason, is unfounded.   Allow me to close with a few further thoughts on our nominations process. When I introduced now Chief Justice John Roberts to the Senate Judiciary Committee in 2005, I expressed my concern that the Federal judiciary is seen by many as another political branch. The confirmation process is often accompanied by the same over-simplifications and distortions that are disturbing even in campaigns for offices that are, in fact, political. This phenomenon is most pronounced at the Supreme Court level, and traces to several causes that I will not try to address today. I mention this, however, to underscore my commitment to a different view of judicial nominations, which I believe comports with the proper role of the judiciary in our constitutional framework.   I do not view our Federal courts as the forum for resolving political disputes that the Legislative and Executive Branches cannot, or do not want to, resolve.    This is why 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 rule 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 because he is superbly qualified under both sets of criteria.             Finally, permit me to thank my colleague from Indiana, Senator Evan Bayh, on the thoughtful, cooperative, merit-driven attitude that has marked his own approach to recommending prospective judicial nominees from our State. The two most recent examples are his strong support for President Bush’s nominations of Judge Tinder for the Seventh Circuit and of Judge William Lawrence for the Southern District of Indiana.    Thank you, Mr. President, for this opportunity to express my support for Judge David Hamilton. I am hopeful that my colleagues will vote tomorrow to end debate on this important nomination.   ###