A Washington Times editorial has again used select comments and decisions made by one of President Obama's judicial nominees to smear him as a “radical's radical.” In addition to invoking judicial nominee Judge David Hamilton's views on “empathy” -- a favorite conservative attack -- the editorial, which is being highlighted by the Fox Nation, misleadingly suggested that Hamilton believes judges should “effectively amend the Constitution” and that he discriminated against Christianity by banning the word “Jesus” from state legislature prayer, but allowing the word “Allah.”
Wash. Times: Hamilton believes judges should “effectively amend” the Constitution with “footnotes”
From the November 3 Washington Times editorial:
Alabama Sen. Jeff Sessions, the ranking Republican on the Judiciary Committee, sent a letter on Friday to his fellow senators outlining his objections to Mr. Hamilton, who is a federal district judge. The senator first objected to Judge Hamilton's stated belief that judges should effectively amend the Constitution -- “writing footnotes to the Constitution,” the judge called it -- through evolving case law. [link added]
Hamilton said “footnotes” comment was about how to apply the Constitution to “new situations” -- not amend it
Hamilton: Speech was “in honor of my late colleague S. Hugh Dillin,” who desegregated schools. During Hamilton's confirmation hearing on April 29, Sen. Tom Coburn (R-OK) asked Hamilton to clarify comments he reportedly made in 2003 during a dedication for the Birch Bayh United States Courthouse in Indiana about it being “part of a judge's job ... to write a series of footnotes to the Constitution.” Hamilton replied:
HAMILTON: The speech you are referring to was in honor of my late colleague S. Hugh Dillin, whose seat I was nominated to take back in 1994. And to give you an idea, I attended schools as a boy that Judge Dillin had desegregated, and he drew great criticism for doing that back in the 1960s. The way he described our work is the daily or weekly application of the provisions and principles of our Constitution to new cases and new situations as they arise. And, at least to me, the concept of the footnote implies what we're trying to do is not something new, but work out the details of how those principles apply to new situations.
Wash. Times: Hamilton “embraced the president's 'empathy standard' ”
From the Times editorial:
Second, Judge Hamilton has publicly and specifically embraced the president's “empathy standard,” which even Supreme Court Justice Sonia Sotomayor has now openly rejected.
But Hamilton's comments about “empathy” echo similar comments about personal experience celebrated by conservatives
Hamilton: “Empathy is the ability to understand the world from another person's point of view.” In his October 30 letter opposing Hamilton, Sen. Jeff Sessions (R-AL) wrote that "[i]n a response to a follow-up question after his hearing, Judge Hamilton stated: 'Federal judges take an oath to administer justice without respect to persons, and to do equal right to the poor and to the rich. Empathy -- to be distinguished from sympathy -- is important in fulfilling that oath. Empathy is the ability to understand the world from another person's point of view. A judge needs to empathize with all parties in the case -- plaintiff and defendant, crime victim and accused defendant -- so that the judge can better understand how the parties came to be before the court and how legal rules affect those parties and others in similar situations.' "
Conservatives have also cited empathy as an important quality in a judge. Undermining The Washington Times' suggestion that Hamilton's “embra[cing] the president's 'empathy standard' ” makes him “radical,” numerous conservatives have previously cited empathy and personal experience as important qualities in a judge -- including Supreme Court Justice Samuel Alito. Conservatives including Justice Clarence Thomas, President George H.W. Bush, and Bush administration lawyer John Yoo have cited personal experience or empathy as an important quality in a judge.
Wash. Times, Fox Nation: Hamilton ruling banned invoking the name Jesus, but not Allah, in legislature prayer
From the editorial:
Third, Judge Hamilton in many cases has shown an extreme hostility against innocuous expressions of religion in the public square. Mr. Sessions noted, though, that Judge Hamilton's odd ruling in Hinrichs v. Bosma “prohibited prayers in the Indiana House of Representatives that expressly mentioned Jesus Christ ... yet he allowed prayers which mentioned Allah.”
Fox Nation promotes Washington Times editorial under the headline, “Obama Judicial Nominee: Jesus, No, But Yes to Allah.” From Fox Nation:
In fact, Hamilton's decision did not favor Islam over Christianity -- it simply banned “sectarian” prayer
Hamilton struck down “sectarian” prayer in Indiana legislature -- not just the words “Jesus Christ.” Using Supreme Court precedent (Marsh v. Chambers), Hamilton ruled in Anthony Hinrichs, et al. v. Brian Bosma that prayer in the Indiana House of Representatives “should refrain from using Christ's name or title or any other denominational appeal” and that such prayer “must be nonsectarian and must not be used to proselytize or advance any one faith or belief or to disparage any other faith or belief.” Hamilton wrote that the “sectarian content of the substantial majority of official prayers in the Indiana House therefore takes the prayers outside the safe harbor the Supreme Court recognized for inclusive, non-sectarian legislative prayers in Marsh v. Chambers, 463 U.S. 783 (1983).”
Post-judgment motion clarified that prayers may include all “non-sectarian” references to God. In a post-judgment motion, Hamilton wrote that "[t]he Arabic word 'Allah' is used for 'God' in Arabic translations of Jewish and Christian scriptures" and that "[i]f those offering prayers in the Indiana House of Representatives choose to use the Arabic Allah, the Spanish Dios, the German Gott, the French Dieu, the Swedish Gud, the Greek Theos, the Hebrew Elohim, the Italian Dio, or any other language's terms in addressing the God who is the focus of the non-sectarian prayers contemplated in Marsh v. Chambers, the court sees little risk that the choice of language would advance a particular religion or disparage others." He continued: “If and when the prayer practices in the Indiana House of Representatives ever seem to be advancing Islam, an appropriate party can bring the problem to the attention of this or another court.”
Millhiser: Conservatives are “mak[ing] up stories about how Judge Hamilton is a secret Muslim.” In a post on The Huffington Post, Center for American Progress' Ian Millhiser noted that Sen. James Inhofe (R-OK) had made similar claims about Hamilton, and added: “I imagine we will hear this claim -- that Hamilton banned references to Jesus but endorsed references to 'Allah' -- a lot in the future, so let me take a moment to explain why Inhofe doesn't know what he's talking about.” After pointing to Hamilton's post-judgment motion, Millhiser wrote that "[c]onservatives know that they cannot win the case against Hamilton on the merits, so they make up stories about how Judge Hamilton is a secret Muslim."
Times, Fox News previously smeared judicial appointee Chen as a “radical”
Fox News, Wash. Times smear Chen as “radical.” Fox News and The Washington Times also used a series of comments reportedly made by Edward Chen -- one of Obama's judicial nominees -- to smear him as a “radical leftist” who “doesn't appear to love America” and as a “biased radical” when, in fact, the quotes in question establish nothing of the sort. These attacks on Chen follow months of a Fox News-led witch hunt against other Obama advisers and appointees, as well as race-baiting attacks on then-Supreme Court nominee Sonia Sotomayor.