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Partisan payback

November 17, 2009

Eight months after President Obama nominated him to the U.S. 7th Circuit Court of Appeals, a jurist from Indiana may finally have a chance at confirmation from the Senate. But a floor vote on U.S. District Judge David F. Hamilton still can't be guaranteed, because Senate Republicans have been engaging in partisan payback for the past obstruction of Republican judicial nominees by Democrats.

As early as today, the Senate will vote on a cloture motion to forestall a filibuster on Hamilton's nomination. Although Hamilton was rated "well qualified" by the American Bar Assn. and is supported by Sen. Richard G. Lugar (R-Ind.), Majority Leader Harry Reid (D-Nev.) has had to scramble for the 60 votes needed to invoke cloture. As with healthcare reform legislation, reaching that magic number is difficult because of possible Democratic defections. But the principal obstacle is the Republicans, who voted as a bloc on the Judiciary Committee to oppose Hamilton. (Disappointingly, the opponents included Sen. Lindsey Graham of South Carolina, the lone committee Republican to support Supreme Court nominee Sonia Sotomayor.)

Hamilton is an inviting target for Republicans because he has been vilified by their social-conservative base. According to his detractors, he is the "anti-Jesus, pro-Allah judge," a distortion of his ruling that prayers in the Indiana Legislature could mention Allah (the Arabic name for God, even for Christians) but not Jesus. Never mind that mentioning a nonsectarian "God" in public settings long has been tolerated by the courts. Hamilton is also being savaged for striking down part of a law that required women seeking an abortion to accept face-to-face counseling.

Even if these decisions were mistaken, no judge should be subjected to partisan cherry-picking of his rulings. But Hamilton's approval also has been complicated by a more general Republican resistance to nominees proposed by Obama, who -- as Republicans never tire of pointing out -- voted against George W. Bush's nomination of John G. Roberts Jr. as chief justice. Obama has made 27 nominations to trial and appeals courts; seven have been confirmed.

It's tempting to dismiss the sluggish pace of judicial confirmations as politics as usual. But delays in filling judicial vacancies interfere with the administration of justice and discourage able candidates, not all of whom are sitting judges, from considering careers on the bench. In the cloture vote on Hamilton, rank-and-file Republicans should show more maturity than their colleagues on the Judiciary Committee.

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