WASHINGTON (CN) – Federal judges David Hamilton and André Davis easily cleared the Senate Judiciary Committee Thursday on their path to the federal appeals court. While both nominees were potentially controversial, senators spent almost no time debating their individual qualifications and instead used the opportunity to debate President Obama’s statement that judges should have empathy.
Hamilton from Indiana is headed to the 7th Circuit Court of Appeals based in Chicago, and Davis from Maryland is going to the 4th Circuit based in Richmond, Virginia.
With rulings on a couple hot-button legal issues, Hamilton was the more criticized nominee. In one decision, he banned the Indiana legislature from referring to Jesus Christ in opening prayers. In another, he ruled unconstitutional a state law requiring that clinics offer women alternatives to abortion no longer than 18 hours before the procedure.
The other nominee, Davis, is filling a seat that’s been vacant for almost ten years. As a black judge, he brings some racial diversity to the Fouth Circuit bench and he would balance political backgrounds on what is widely considered the most conservative U.S. appellate court.
The 4th Circuit currently seats five judges appointed by Democrats and six appointed by Republicans.
At Thursday’s hearing, Oklahoma Republican Tom Coburn expressed concern that Hamilton had allowed empathy to determine his decisions, adding that he “chose to ignore” the “rules and construction of the law.”
Vermont Democrat Patrick Leahy, who chairs the committee, pointed to the nomination of Justice Clarence Thomas by then-President George H.W. Bush, where Bush said empathy was part of the criteria in appointing a Supreme Court justice.
Leahy added that he couldn’t remember a single republican objecting at the time.
Obama is trying to be bipartisan, Leahy suggested with a hint of irony, by using the same criterion in his judicial nominations as the Republicans.
But Arizona Republican Sen. Jon Kyl did not agree. He said Obama’s view that judges should have compassion is “fundamentally wrong.”
“There is always a legal reason to rule one way or the other,” said Kyl. “You don’t have to default to what’s in your heart.”
That criticism of Obama’s views prompted sarcasm from Leahy, who said, “It kind of makes you wonder how he ever got elected.”
“I’ve sometimes asked myself that question,” answered Kyl.
The Republican from Arizona continued by comparing a judge to an umpire, saying umpires call the strikes but don’t make the rules. He said the umpire can’t change the size of the strike zone to help out a team that hasn’t won the World Series — a comment that brought California’s Senator Dianne Feinstein into the fray.
“The American judiciary is not just a counter of balls and strikes!” said the Democratic Sen. Dianne Feinstein. “This isn’t just law,” she stated. It’s also humanity and mercy and compassion. “That we have to appoint a judge that has none of the above is astounding!”
The nomination of Davis is less controversial but it dredged up some bitter history.
Alabama Republican Senator Jeff Sessions criticized six reversals of rulings where Davis had suppressed police evidence.
Rhode Island Democratic Senator Sheldon Whitehouse said that if Sessions uses the standard that a judge can’t be reversed, a district court judge will never become an appellate court judge.
Sessions also expressed some bitterness over the seat’s history, where former President George W. Bush tried unsuccessfully to fill the position three times.
Leahy mentioned that one of Bush’s nominees to the 4th Circuit was “convicted of fraud.”
Leahy was apparently referring to Claude Allen. He was Bush’s top domestic policy advisor who was later accused of taking $5,000 worth of merchandise from department stores.
Hamilton’s nomination passed on 12-7 vote. Davis passed on a 16-3 vote.