Mr. COBURN. I come to the floor--I am a member of the Judiciary Committee--to raise significant concerns about this nominee. There is no question he is a fine man. There is no question he has a lot of experience, a great education. But there is also no question in my mind that he is a highly activist Federal judge who will be promoted to a level of making final determinations on most of the decisions that come before him and his circuit.
He does have a distinguished history, but his history is complicated by, in my opinion, a view that it doesn't matter what the Congress says; that it doesn't actually matter what precedent says; it doesn't matter what stare decisis, the precedent of the Supreme Court, says; he believes he can rule against that.
After attending his hearings, I would note there were over 10,000 pages of decisions and his vote on the committee was well before we could actually consider all 10,000 pages of decisions. He was voted out of our committee.
I want to raise in detail some of my problems and then give some case histories to back them up. For example, I asked Judge Hamilton whether he thought it was appropriate for a judge to consider foreign law when interpreting the Constitution. Rather than recognize the court should not be looking to foreign law when interpreting our Constitution, Judge Hamilton used an analogy of judges considering law review articles of American lawyers with consulting decisions of foreign courts. He stated:
[C]ourts ..... will look to guidance from wise commentators from many places--professors from law schools, experts in a particular field who have written about it. And in recent years, the Supreme Court has started to look at some courts from other countries where members of the Court may believe that there is some wisdom to be gained. As long as it is confined to something similar to citing law professors' articles, I do not have a problem with that.
I have serious concerns with that. Let me put out what those are. What he fails to recognize when he equates the two is that professors who are writing on American law in American journals are writing about the interpretation of our Constitution based on American statutes and American values. They begin their analysis with an understanding of the creation of our Constitution by our Founders and our system of limited government.
When American courts look to foreign law, they are considering opinions and wisdom of people who do not share our values and who are unfamiliar with American statutes and constitutional interpretations. By conflating the two types of references, Judge Hamilton tries to minimize the damage courts can inflict on our Constitution when they look to foreign courts for guidance.
I was even more disturbed by Judge Hamilton's answers to my written questions following his hearing. In his responses, Judge Hamilton embraced President Obama's empathy standard, writing that empathy was ``important in fulfilling [the judicial] oath.''
As a matter of fact, Supreme Court Justice Sotomayor cited just the opposite. What she said was that she looks at facts, not empathy. She rejected the empathy standard.
He also explained why he believed he fit this standard and emphasized his effects-based approach, stating:
Because I will continue to do my best to follow the law, to treat all parties who come before me with respect and dignity, and to understand how legal rules or decisions will affect behavior and incentives for different people and different institutions.
That is nowhere in the oath of a judge. Nowhere is that. Considering the consequences of his ruling and how that might affect people should not be part of the decisionmaking, in making the ruling.
These statements following his hearing only confirmed what I feared prior to his hearing: that Judge Hamilton embraces a liberal activist philosophy and has implemented that philosophy in his legal decisions.
As evidence of his activist tendencies on the bench, I will turn now to some of his opinions as a district court judge that illustrate his propensity to allow his personal biases to influence his decision. In the case of Women's Choice v. Newman, Judge Hamilton succeeded in blocking the enforcement of a valid Indiana law for informed consent for 7 years--7 years. The law required doctors to give certain medical information to women in person before an abortion could be performed and required a waiting period before an abortion was performed.
There is already precedent, clearly by Casey, in the Supreme Court. When overturning Judge Hamilton's ruling, the Seventh Circuit harshly criticized his decision by stating:
[F]or 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) has held any similar law invalid in the years since Casey ..... Indiana (like Pennsylvania and Wisconsin) is entitled to put its law into effect and have that law judged by its own consequences.
That is a harsh review.
Further, Judge Coffee, in his concurring opinion in this case, was even more critical of Judge Hamilton's opinion, and he specifically criticized Hamilton's reliance on one study which was conducted by the Planned Parenthood-affiliated Guttmacher Institute.
Here is what he said about Judge Hamilton's decision:
[His decision] invades the legitimate province of the legislative and executive branches.
That is the problem with judicial activists. They see no limits. They take a personal bias, and they use that bias rather than interpreting the statutes and looking at precedent. They make their own decision. For 7 years Indiana was without a duly-passed statute passed by the elected representatives of that State, in error, because Judge Hamilton believed something different.
He didn't rely on precedent. He relied on his personal bias, a strong personal bias that said that wasn't right, when all the other courts had recognized the precedent by Casey.
Here is what Judge Coffee also said:
As a result, literally thousands of Indiana women have undergone abortions since 1995 without having had the benefit of receiving the necessary information to ensure that their choice is premised upon the wealth of information available to make a well-informed and educated life-or-death decision. I remain convinced that [Judge Hamilton] abused his discretion when depriving the sovereign State of Indiana of its lawful right to enforce the statute before us. I can only hope that the number of women in Indiana who may have been harmed by the judge's decision is but few in number.
As the Seventh Circuit properly notes, as a result of his activism, Judge Hamilton effectively prevented the people of Indiana from enforcing a duly enacted, reasonable restriction on abortion in violation of existing law and Supreme Court precedent.
In two other cases, Judge Hamilton succeeded in excluding traditional religious expression from the public square. In the case of Hinrichs v. Bosma, Judge Hamilton prohibited prayers in the Indiana State Legislature that mentioned Jesus Christ while allowing those that mentioned Allah. The Seventh Circuit reversed that decision.
In another case, Grossbaum v. Indianapolis-Marion County Building Authority, Judge Hamilton's decision prohibited a rabbi from placing a menorah in a public building. A unanimous Seventh Circuit court panel reversed Judge Hamilton's ruling and noted that he had ignored two Supreme Court cases that were directly on point.
Why would a learned judge ignore precedent? There is only one reason for ignoring precedent, and that is a judicial activist bias that he does not have to follow the law; that he is not limited by the Constitution, but he is limited to his personal feelings and his personal beliefs. That is the exact opposite of what we want in terms of neutrality of those directing court proceedings.
Judge Hamilton's record also suggests he is empathetic toward criminal defendants rather than the victims of crimes. According to the Almanac of the Federal Judiciary, local practitioners have said Judge Hamilton ``is the most lenient of any judge in the district. .....''
``He is one of the more liberal judges in the district.''
``He leans towards the defense.''
``He is your best chance for downward departures.''
``In sentencing, he tends to be very empathetic to the downtrodden or those who commit crimes due to poverty.''
Blind justice doesn't recognize wealth when you commit a crime. It doesn't recognize wealth. If, in fact, that were the case, we should have more severe penalties for people who have greater means. But, instead, we treat everybody the same under the law.
I believe his judicial record confirms the statements of these local practitioners. For example, in the case of United States v. Woolsey, Judge Hamilton ignored the prior conviction of a defendant in order to avoid imposing a life sentence and was reversed by the Seventh Circuit. He ignored a prior conviction. He chose to ignore it. Activist, not following the law, not following the Code of Judicial Conduct. You do not get the choice to ignore it. It is a breach of his judicial oath. Yet he does it.
Here is what the Seventh Circuit said as they criticized Judge Hamilton's decision:
[The] Indiana district court was not free to ignore Woolsey's earlier conviction ..... we have admonished district courts that the statutory penalties for recidivism ..... are not optional, even if the court deems them unwise or an inappropriate response to repeat drug offenders.
In yet another case demonstrating his empathy toward criminals, Judge Hamilton took the unusual step of issuing a separate written order of judgment and conviction ``so that it may be of assistance in the event of an application for executive clemency'' because he believed the 15-year mandatory sentence he was forced to impose on a child pornographer was too harsh.
In this case, U.S. v. Rinehart, the defendant, a police officer, pled guilty to two counts of producing child pornography after he took pictures of a 16-year-old girl engaged in ``sexually explicit conduct'' and took videos of himself and a 17-year-old girl engaging in sexual relations. These images ended up on his home computer, and he was charged under the Child Protection Act of 1984.
In a separate written order of judgment, Judge Hamilton concluded by stating his personal views in this case and urging executive clemency. He is stating his personal views in this case, in other words, not that of a judge. He has stepped out of being a judge. Now, using the role of a judge, he is using his personal views to influence clemency. Here is what he said:
This case, involving sexual activity with victims who were 16 and 17 years old and who could and did legally consent to the sexual activity, is very different. But because of the mandatory minimum sentence of 15 years required by 18 U.S.C., 2251(e), this court could not impose a just sentence in this case. The only way that Rinehart's punishment could be modified to become just is through an exercise of executive clemency by the President. The court hopes that will happen.
He later confirmed to us that he thought that action was appropriate. When Congress passed the Child Protection Act of 1984, at issue in this case, it determined that in order to strengthen Federal child pornography laws, a child is defined as someone under the age of 18. So what did Judge Hamilton do? He said what we say doesn't make any difference. The fact that the legislative body signed it, and it was put into law by the executive branch--he didn't think that counted because he didn't agree with it. So he went outside of it to try to get clemency based on him thinking we were wrong. He didn't have any basis of law to do it, but then did it anyway.
In our constitutional system of government the power to create legislation is assigned to the Congress and a judge must simply interpret the law as it is written. This judge refused to do that.
When a judge second-guesses Congress, criticizes its legislative decisions as being unfair, and invites a grant of clemency, he undermines the rule of law and the confidence the American people have in their government. Judge Hamilton's action in this case belies his tendency to empathize with criminal defendants.
These are just a few of the statements and opinions in Judge Hamilton's record that form the basis of my opposition. I believe he is an activist jurist. He has shown that he will allow his personal biases and prejudices to affect the outcome of cases before him. I do not believe he deserves a promotion to the Seventh Circuit where he will be even less constrained by precedent and the possibility of a reversal on appeal.
I will be voting against his confirmation, and I believe the people of this country should be very wary of other judges who have an activist bent, who disrespect the rule of law, who believe they do not have to look at precedent, who, because their personal bias is different than what the law says, believe they can be in a position to effect change in the law rather than have it come through, or all the way to the court, to do that.
The job of the judge is to interpret the law and the facts carefully. This judge does not do that.
I yield the floor.
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