WASHINGTON (CN) – Federal judges David Hamilton and André Davis easily cleared the Senate Judiciary Committee hurdle Thursday on their path to serving on federal appeals courts. After much debate over President Barack Obama’s insistence that his judicial nominees display empathy, the committee elected to put the nominations to a final vote by the entire Senate. “There is always a legal reason to rule one way or the other,” Arizona Republican Sen. Jon Kyl said. “You don’t have to default to what’s in your heart.”
“It kind of makes you wonder how he ever got elected,” Chairmen Patrick Leahy replied sarcastically about Obama. Leahy is a Democratic senator from Vermont.
“I’ve sometimes asked myself that question,” Kyl said.
Obama nominated Hamilton to the 7th Circuit in Chicago and Davis to the 4th Circuit in Richmond, Va. Hamilton currently serves as the chief judge for the U.S. District Court for the Southern District of Indiana, and Davis is a federal judge in Maryland. Both were nominated to their district court positions by former President Bill Clinton.
Their nominations to the federal appellate circuits are important. Hamilton has ruled on several controversial matters, once banning the Indiana Legislature from referring to Jesus Christ in its opening prayers. Another time, he rejected a law requiring clinics to offer women alternatives to abortion 18 hours before the procedure.
If Davis is confirmed, he would fill a seat that’s been vacant for almost 10 years and could balance the political affiliations of what is widely considered the most conservative federal appeals court. The 4th Circuit currently seats five Democratic-appointed judges and six Republican-appointed judges.
Oklahoma Republican Tom Coburn was concerned that Hamilton “chose to ignore” the “rules and construction of the law” as a judge, in letting empathy determine his decisions.
Leahy replied that Coburn should not be concerned about empathy as a criterion. He brought up George H.W. Bush’s nomination of Justice Clarence Thomas, where Bush said empathy was part of the criteria in appointing a justice to the Supreme Court. Leahy said he couldn’t remember a single Republican objecting then.
Leahy added that he thought Obama was trying to reach across the aisle in using the same criterion in his judicial nominations.
Kyl disagreed. He called Obama’s view that judges should have compassion “fundamentally wrong.” He compared a judge to the umpire of a baseball game in saying that umpires call the strikes, but don’t make the rules. The umpire can’t change the size of the strike zone to help out a team that hasn’t won the World Series.
“The American judiciary is not just a counter of balls and strikes!” argued California Democratic Sen. Dianne Feinstein. She said that if it were, we would just line up computers for judges.
“This isn’t just law,” she stated. It’s also humanity and mercy and compassion, she said. “That we have to appoint a judge that has none of the above is outstanding.”
In a phone interview, visiting fellow Russell Wheeler of the Brookings Institute, an independent think tank, said Hamilton may have attracted attention from Republicans as a judge with empathy for his controversial rulings on abortion and prayer. “Those kinds of decisions lend themselves to judicial activism,” he explained, “and that’s a pretty short link to the buzzword empathy.”
Nonetheless, Wheeler said most judges do take their experiences into account when making a ruling.
The nomination of Davis was less controversial. “The reversal record should be given some careful review,” Alabama Republican Jeff Sessions stated, pointing to six reversals in which Davis had suppressed police evidence.
Rhode Island Democratic Sen. 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 likely referring to Claude Allen. He was Bush’s top domestic policy advisor and was arrested after he was investigated for stealing more than $5,000 worth of merchandise from department stores
Hamilton’s nomination passed on a 12-7 vote from the committee, while committee members voted 16-3 to approve Davis’ nomination.