The Senate is scheduled to finally vote this week on the nomination of David Hamilton to the 7th Circuit Court of Appeals, after a cloture vote passed 70-29. At the forefront of debate is his strong 2005 ruling as a District Judge that the Indiana House violated the separation of church and state by opening legislative sessions with specifically Christian prayer (Hinrichs v. Bosma). In debate of the nomination on the floor yesterday, Senator Jeff Sessions (R-AL) wrongly suggested that the ruling's subsequent reversal by the Court of Appeals amounted to a repudiation of Hamilton's reading of the First Amendment (my emphasis):
I would like to next look at the Hinrichs v Bosma case. I do not contend, and it is not right to say, Judge Hamilton is hostile to religion. It does appear he is hostile to the free expression of religion in certain circumstances and has been reversed as a result of it.
Senator Richard Lugar (R-IN) set the record straight in his endorsement:
…contrary to certain charges, Judge Hamilton's ruling on the issue was not reversed. The Seventh Circuit's later reversal did not involve the merits, but the separate, procedural issue of whether the taxpayer plaintiffs had legal standing to challenge the legislative practice. In this case, a subsequent Supreme Court ruling created a new precedent which led to the reversal.
At the time of Judge Hamilton's opinion, the Supreme Court had not yet made its ruling in the Hein case, which limited the ability of taxpayers to file suit claiming an Establishment Clause violation. Essentially, what the 7th Circuit determined was not that Hamilton had gotten anything wrong, but that things had changed since his ruling thanks to Hein. Even then, what changed was not related to the substance of his decision. He certainly was not "reversed as a result of" his views on the "free exercise of religion".
Senator Charles Grassley (R-IA) also characterized Hamilton's decision in Hinrichs as "hostility against the expression of religion in the public square."
I can't help but remember that the Senate Judiciary Committee held confirmation hearings of Judge Hamilton and no Senator opposing him – including Senator Sessions – saw fit to participate with a single question on the issue during the public questioning.
