I have been out of state for ten days in a much-needed reprieve from political battles. Even though I was away from e-mail and cell access in the hills of the Ozarks in Southern Missouri, I could not resist the temptation of tuning into the radio each day. One night last week I heard talk show host Mark Levin, discussing the US Senate’s vote to confirm Indiana Federal Court Judge David Hamilton whom the President chose to serve on the 7th Circuit Court of Appeals in Chicago. During the Reagan Administration Levin was the former Chief of Staff to Attorney General to Edwin Meese. He is an attorney and the President of the Landmark Legal Foundation as well as the author of Men in Black. Levin was really lit up over Senator Richard Lugar’s support for Hamilton, a former Board member of the ACLU of Indiana.
Last Monday, Senator Lugar got in a debate with fellow Republican Senator Jeff Sessions, the Senior Republican on the Judiciary Committee, who blasted Hamilton as the liberal judicial activist he is and always has been. Astonishingly, Lugar attempted to thread the needle in arguing that contrary to common perception, Judge Hamilton did not specifically target opening prayers before the Indiana General Assembly which mentioned the name of Christ, or prayers “in Jesus name", a common closure to Christian’s prayers.
In the 2005 case, Hinrichs v. Bosma, Federal District Judge David Hamilton prevented the Speaker of the Indiana House from allowing “sectarian” prayers as part of the legislature’s official proceedings. Few seemed to question what right one branch has under the doctrine of the separation of powers in dictating the procedural protocol of another branch. Perhaps this point was somewhat overlooked because Judge Hamilton saw something egregious in such a benign ceremonial tradition, which had occurred for 189 years without controversy, involved all faiths, and has continuously occurred in other states and the US Congress since our nation’s founding days.
In a post-judgment motion Hamilton drew the line between prayers that “use Christ’s name or title” as sectarian, and prayers to Allah as non-sectarian or permissible. Senator Sessions honed in on this astonishing distinction just as many others at the time did like the front-page headline of theRichmond Times when it proclaimed, “No Jesus in Statehouse Prayers.” Astonishingly, Senator Lugar went to the floor of the Senate in an 18-minute speech, defending Hamilton as being a mainstream judge who had not specifically targeted Christian prayers.
While I agree with Sen. Sessions’ view of Hamilton’s attack on prayer, it is worth remembering that Sen. Lugar’s support of Hamilton and his defense of his ruling, is counter to the spanking that the 7th Circuit handed Hamilton when they rejected his legal view. Its also counter to the outrage against Hamilton’s meddling from those who were most affected by his sweeping ruling. After prayer was banned, the Indiana Senate unanimously passed a strongly worded resolution in opposition to Hamilton’s ruling, and the Indiana House followed soon thereafter with a similar resolution which passed overwhelmingly.
You can read the two resolutions from the Indiana legislature here:
Senator Session’s criticism of Hamilton is also justified by the Judge’s extraordinary blocking of Indiana’s modest informed consent for abortion legislation, which, began in 1997, and finally ended seven years later when the 7th Circuit again decisively overruled him. In reviewing an editorial I wrote during that time, I blasted Judge Hamilton for legislating from the bench because he not only blocked the informed consent legislation, but he also rewrote it as if he were a state legislator.
Judge Hamilton ruled that women could be informed about the risks and alternatives to abortion over the phone. What made this so outrageous is that this was an idea that a legislative committee had thoroughly discussed and specifically rejected, as is the role of policy makers in crafting legislation. They rejected the idea because there was no way of guaranteeing that the person at the abortion clinic providing information and answering women’s questions over the phone was a trained medical professional rather than a receptionist or the night janitor. At the time Hamilton also lamented the possibility that informing women of their options might reduce the number of abortions by 400 per year in Indiana.
Here is what the 7th Circuit said of Hamilton’s rulings when he was soundly overturned and the “woman’s right to know” law finally allowed to go into effect:
For 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 [i.e., David Hamilton]) has held any similar law invalid in the years since Casey.
Senator Richard Lugar has often had a discernment problem when it comes to presidential appointees, (Sen. Lugar shocked many when he voted to confirm President Clinton’s radical Surgeon General, Joycelyn Elders,) but his joining Senate liberals last week in vocal support of David Hamilton is still disappointing. In this long review of Hamilton’s rulings on these two, key issues of abortion and religious tolerance, Lugar’s confirmation vote is actually quite outrageous.