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Giving hypocrisy a bad name
Republicans slammed filibusters of Bush judicial nominees. Now they see things differently.

Tuesday, November 17, 2009

DURING THE BUSH administration, Republicans decried Democratic attempts to filibuster judicial nominees. Some went so far as to label such filibuster attempts unconstitutional and threatened to exercise the "nuclear option" to ban the procedural tool in nomination matters.

Yet now Republicans are threatening to filibuster in an attempt to thwart confirmation of President Obama's first judicial nominee, Indiana federal Judge David F. Hamilton. The Senate is scheduled to vote on cloture Tuesday on Judge Hamilton's nomination to the U.S. Court of Appeals for the 7th Circuit. The prospect of a filibuster is made all the more ridiculous because Judge Hamilton has been rated "well-qualified" by the American Bar Association, enjoys the support of both home state senators, including Republican Richard G. Lugar, and even wins praise from the conservative Federalist Society of Indiana.

Sen. Jeff Sessions of Alabama, ranking Republican on the Judiciary Committee, has distorted Judge Hamilton's record on the trial court in an effort to rally the GOP caucus. For example, Mr. Sessions, arguing that Judge Hamilton is too liberal, cites a case in which Judge Hamilton struck down as unconstitutional sectarian Christian prayers in the Indiana state house but allowed those that referred to Allah. Mr. Sessions points out that the decision was overturned by the court of appeals that Judge Hamilton now hopes to join.

But the senator fails to explain that Judge Hamilton documented that 41 of the 53 invocations during the 2005 session of the Indiana House were given by Christian clergy; nine were delivered by elected officials; one each was said by a Muslim imam, a Jewish rabbi and a layperson. Such a lopsided tally, Judge Hamilton reasoned, could leave the constitutionally unacceptable impression that Indiana lawmakers favored one religion above all others. Judge Hamilton explained in his written opinion that the ruling did not "prohibit the House from opening its session with prayers if it chooses to do so, but will require that any official prayers be inclusive and non-sectarian, and not advance one particular religion." Mr. Sessions also fails to note that the 7th Circuit reversed Judge Hamilton on procedural grounds and not because it disagreed.

There are probably not the 40 votes needed to block Judge Hamilton's nomination from reaching the floor. We hope that Republicans in large numbers heed Mr. Lugar's words of praise for Judge Hamilton's record, intellect and character and allow a vote -- and then vote in favor of confirmation. In this instance, a vote for Judge Hamilton will be a vote to restore much needed comity and integrity to the process -- qualities that the next Republican president will greatly appreciate when his nominees are considered.

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