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Friday, May 22, 2009

Courts - More on: President Obama's Indiana nominees David Hamilton and Dawn Johnsen remain in limbo

Updating this ILB entry from yesterday, Maureen Groppe of the Gannett News Service reports:

WASHINGTON -- At the request of Republicans, the Senate Judiciary Committee postponed a vote yesterday on the confirmation of U.S. District Judge David Hamilton of Indiana to serve on the 7th U.S. Circuit Court of Appeals.

Sen. Jeff Sessions, R-Ala., said Republicans need more time to review Hamilton's court record, which Sessions said includes a "number of troubling rulings." He noted Hamilton's 2005 ruling that prayers spoken at the start of Indiana state House sessions must not mention Jesus Christ or advance any religion.

"There are some legitimate concerns," Sessions said. "This is a complex area of the law, I'll admit, but it's time for the federal court to get their heads straight on proper separation of church and state issues."

The 7th Circuit reversed Hamilton's decision last year, saying the group of Indiana taxpayers who had challenged the practice did not have sufficient standing because they had not proved they were directly affected by the House prayers.

Hamilton, a nephew of former U.S. Rep. Lee Hamilton, testified at his confirmation hearing April 1 that rules on the issue of standing changed between the time he determined the taxpayers could challenge the law and the time the appeals court said they could not.

"I certainly hope the decision is not interpreted at all as limiting anyone's free exercise of religion nor as favoring any one religion over the other," he said. * * *

The committee did not announce a new date for a vote.

Hamilton, Obama's first judicial nominee, has the support of Indiana Sens. Evan Bayh, a Democrat, and Richard Lugar, a Republican. He received the American Bar Association's top rating of "well qualified."

"I view President Obama's nomination of Judge Hamilton as something to be commended rather than obstructed or delayed," said Sen. Patrick Leahy, D-Vt., who heads the Judiciary Committee. "Judge Hamilton is a well-respected federal judge not known for partisanship or an ideological agenda."

The Volokh Conspiracy's Jonathan Adler speculates briefly over a possible recess appointment for Dawn Johnsen, However, the entry was quickly updated with this:
UPDATE: A reader with a better memory than I notes that, according to at least one OLC attorney serving in this Administration, any recess appointment over the Memorial Day break would be unconstitutional.
The update links to this Aug. 4, 2005 entry by Marty Lederman in Balkinization, claiming that:
the term "the Recess" [in the Recess Appointments Clause (Art. II, sec. 2, cl. 3)] refers solely to recesses between "Sessions" of the Senate, and not to intra-session adjournments
Finally, updating this ILB entry from Thursday, quoting from a Bloomington Times-Herald editorial headed "GOP state senators off track on Dawn Johnsen", the Fort Wayne Journal Gazette published this editorial yesterday:
Indiana lawmakers were unable to perform the one task they were required to accomplish this year – adopt a new state budget.

But 31 of the Indiana Senate’s 33 Republicans did find time to sign on to a letter to Sens. Richard Lugar and Evan Bayh urging them to vote against Indiana University law professor Dawn Johnsen, whom President Obama wants to head up the office of legal counsel in the Justice Department. The state senators were apparently jumping because Indiana Right to Life, which doesn’t want Johnsen in the assistant attorney general role, told them to. The state legislature has absolutely no jurisdiction whatsoever on the U.S. Senate’s vote on Obama nominees.

Only two GOP senators declined to sign the letter: Vaneta Becker of Evansville and Teresa Lubbers of Indianapolis. Lubbers suggested that Lugar – one of the most intelligent and well-respected members of Congress – probably didn’t need her advice on how to vote on a sub-Cabinet secretary nomination.

Posted by Marcia Oddi on May 22, 2009 09:14 AM
Posted to Courts in general