Once again, Americans United for Separation of Church and State has demonstrated that it is not a First Amendment watchdog nearly so much as a partisan attack dog shilling for the Democratic Party. This time, the subject is nominations to the federal courts, where Rob Boston puts on a stunning display of hypocrisy in the cause of political gain:
How are Obama and the Senate doing with the lower courts? Not so well. The Washington Post reports today that there are 90 vacancies in the federal court system, and Obama has forwarded nominees for just 23.
Furthermore, the Senate is dragging its feet on those already nominated. Obama’s first choice for the federal appeals courts, David Hamilton of Indiana, was nominated in March and has been approved by the Senate Judiciary Committee. He has yet to receive a vote in the full Senate.
What’s the hold-up? The Religious Right and its right-wing Senate allies don’t like the fact that Hamilton, as a lower court judge, issued an opinion striking down sectarian invocations in the Indiana House of Representatives. They also dislike an abortion-related ruling he issued.
In fact, when Hamilton was first nominated to the District Court by President Clinton, he was rated “not qualified” by the American Bar Association. He has also been rebuked–not by the “religious right” but by the Seventh Circuit Court of Appeals to which he has been nominated–for abusing his judicial discretion, in an opinion striking down his decision holding up enforcement of a abortion restriction in Indiana:
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., Hamilton]) has held any similar law invalid in the years since Casey. Although Salerno does not foreclose all pre-enforcement challenges to abortion laws, it is an abuse of discretion for a district judge to issue a pre-enforcement injunction while the effects of the law (and reasons for those effects) are open to debate.
This kind of ideologically-driven judging raises serious questions about a nominee’s fitness for higher judicial office, but Boston would have you believe it’s just right-wing politics that has kept the Senate from confirming him. Boston then, however, compounds this by making a more general statement:
Opposition to Hamilton is driven by ideology. Some Religious Right groups and activists don’t like Hamilton’s rulings and have urged senators to use procedural ploys to slow his nomination.
Ironically, these same organizations protested loudly when Democrats were supposedly holding up judicial nominees during the presidency of George W. Bush.
Our country is ill-served when there are vacancies on the federal bench. The courts face a backlog already, and a lack of judges only exacerbates the problem. Obama won the election; he gets to name the judges. That’s the way the system works.
The hypocrisy of this is truly mind-blowing. Back in the day, AU was on the front lines of those urging Senate Democrats to use whatever means necessary to stop nominees with whom they had purely ideological differences. For instance, back in October of 2002 AU published an article in Church and State about Bush nominee Michael McConnell in which the organization urged his defeat:
Americans United takes no issue with McConnell on a personal level but believes that he is a legal activist whose unrelenting hostility toward church-state precedent and the high court make him unfit for service on the federal bench.
In other words, McConnell disagrees with some Supreme Court decisions (who doesn’t?) and AU on church-state separation. That makes him “unfit.”
Critics also say McConnell seems to have little respect for abiding by precedent a key concept of modern law.
A complaint which would seem to fit Hamilton as well, with one exception: McConnell disagreed with particular precedents as a legal scholar and law professor; Hamilton ignored precedent as a judge. Here’s the punchline:
Most recently, the [Democrat=controlled] Senate Judiciary Committee Sept. 5 rejected a Bush appointee to the federal appeals court, Priscilla Owen, because of fears that she was a judicial activist. Seeing that vote as a sign that the Senate is unwilling to simply rubber-stamp Bush judges, AU is working hard to make sure the committee understands the radical church-state agenda of McConnell.
And McConnell was just one of a number of Bush judicial nominees that AU opposed, not because they were unqualified, but because they disagreed with their takes on a number of issues. That approach, which has its origins in the defeat of the Supreme Court nomination of conservative Robert Bork in 1987, is only valid when liberals do it, however. For conservatives to do it means that they refuse to acknowledge that “elections have consequences.” For Americans United, it would seem that only one kind of election–one in which AU’s favored candidate, and particularly the one so favored in 2008, is victorious–actually has consequences.