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Attempt to appease GOP earns slap in face

Hamilton
Hamilton

– When President Obama selected a Hoosier judge as his first nominee for the federal appeals court in March, it was supposed to reflect a new way of doing business in Washington.

He consulted with the home-state senators, including Sen. Richard Lugar. Translation: Republicans were not shut out of the selection process.

He went to Indiana to find his first nominee. Translation: Hoosiers (and other Republican states) need not think Obama would ignore them now that he had gotten what he wanted – their voters.

He picked a jurist whose political activity was connected to a moderate Democrat (then-Gov. Evan Bayh). Translation: Senate Republicans could be reassured that Obama would choose from among the ideologically moderate pool of judges for his nominees.

David Hamilton certainly had other qualities that made him worthy of Obama’s consideration, but the outreach to Republicans was a dominant leitmotif. It was a gesture that the White House was serious about calming the partisan hostilities over judicial nominees of the past several presidencies.

That lasted about two seconds.

Hamilton was confirmed Thursday to a lifetime seat on the federal court of appeals, but not without the reappearance of the very hostilities Obama was trying to quell with his Hamilton nomination.

I bet most Americans would agree that opposing the Democratic nominee of a Democratic president because of the adjective stretches the constitutionally assigned Senate responsibility of “advise and consent” too far. (Ditto the Republican nominees of a Republican president.)

Be that as it may, the votes of 39 of the Senate’s 40 Republicans conveyed that they think Hamilton is unfit for the bench. Lugar’s was the solo GOP vote in favor of Hamilton’s confirmation.

It could be that Lugar’s 39 colleagues bought the distortions repeated in four speeches by Sen. Jeff Sessions – characterizations of Hamilton’s record that were so off base that Lugar asked for time on the Senate floor to refute them point by point.

It could also be that to those 39 Republicans, no nominee put forward by a Democratic president is qualified to be a federal judge; intellect, character and judicial record are far inferior to a nominee’s political affiliation.

No doubt those two suppositions apply to many, if not most, of the Senate’s Republicans. But at least a handful rolled their eyes at Sessions’ interpretation of Hamilton’s record but voted against him to protect their political skins.

Here’s what I mean: Ten Republicans voted with the 58 Democrats and two independents to crush the Sessions-led filibuster. Under Senate rules, 60 votes are needed to end a filibuster, so those 10 votes were important (though, as it turned out, not essential).

But confirmation requires just 51 votes. So it was clear that Hamilton’s confirmation could be approved handily without a single Republican vote.

The nine plus Lugar stood up for the principles Obama laid out by voting to plug the filibuster. Their filibuster votes were a bold statement, and they saw no reason to poke sticks in the eyes of the angry right by voting “yes” on a confirmation that would pass easily without their help.

If they thought Hamilton was well-qualified to be a judge (even if not their first choice), there was no danger in voting against his confirmation because it was sure to pass.

But the potential penalty for voting “yes” hovered ominously in this political climate. Several organizations made it explicitly clear to Republicans in the run-up to the Hamilton confirmation vote that they would consider both the filibuster and confirmation votes in their annual evaluations of lawmakers.

Those scorecards are all too frequently used by voters to make their ballot box choices and even their donation decisions.

For instance, the Indiana Right to Life organization issued a statement a few hours after the Hamilton vote criticizing Lugar: “Today he has given the Obama administration a federal judge who will be antagonistic to pro-life efforts for years to come, and he has shown once again that he has never met a liberal judicial appointment that he doesn’t like.”

In fact, the important vote in the Hamilton confirmation process was the filibuster vote. Ten Republicans did the right thing.

The angry right probably will lambaste them, anyway, but it’s a bit harder to make the criticism stick; most voters don’t fully understand the significance of the filibuster vote.

But it’s a shame everyone has to go through this charade.

Obama’s attempt to ratchet down the partisan hostility over judges was slapped away. Voters who don’t look beyond the final party-line (except for Lugar) vote will see Republicans in one of two ways: uber-partisan and unwilling to support any Democratic judicial nominee, or the only thing that stands between them and runaway judges.

Both impressions are wrong, and our system is not well served by politicians who encourage those false notions.

Sylvia A. Smith has worked at The Journal Gazette since 1973 and has covered Washington since 1989. She is the only Washington-based reporter who exclusively covers northeast Indiana. Her e-mail address is sylviasmith@jg.net. Her phone number is 202-879-6710.