Noted global warming denier James Inhofe, who once insisted that the United States base its foreign policy on the book of Genesis, announced on the Senate floor yesterday that he will filibuster the nomination of Judge David Hamilton to the Seventh Circuit. Judge Hamilton, a highly regarded district judge whose nomination received enthusiastic support from Hamilton's homestate Republican Senator Richard Lugar, is President Obama's first nominee to the federal bench.
Inhofe says he will filibuster Judge Hamilton because Hamilton's enforcement of the Establishment Clause offends Inhofe's fundamentalist beliefs:
Many remember David Hamilton because of his 2005 decision as a Federal district court judge presiding over the case Hinrichs v. Bosmah, in which he enjoined the Speaker of Indiana's House of Representatives from permitting ``sectarian'' prayers to be offered as part of that body's official proceedings, meaning that the chaplain or whomever opened the proceedings with prayer could not invoke the name of Jesus Christ. In his conclusion, Hamilton wrote: ``If the Speaker chooses to continue any form of legislative prayer, he shall advise persons offering such a prayer (a) that it 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, and (b) that they should refrain from using Christ's name or title or any other denominational appeal.'' Further, ruling on a postjudgment motion, Hamilton stated that invoking the name of ``Allah'' would not advance a particular religion or disparage another. So, praying to Allah would be perfectly acceptable.
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.
In Marsh v. Chambers, the Supreme Court held that legislatures can open their session with a non-sectarian prayer, and that such a prayer could invoke "God." Marsh, however, also established that such prayers must be entirely non-sectarian, emphasizing that the prayer in that case was permissible because it was not used "to proselytize or advance any one, or to disparage any other, faith or belief." So non-sectarian statements of reverence to God are kosher, but prayers that offer a uniquely Christian or Jewish or Muslim or Wiccan view are forbidden. This is the Supreme Court's rule, and if Jim Inhofe has a problem with it than his beef is with the Justices, not with David Hamiltion.
Hinrichs v. Bosmah, the case that Inhofe cites in attacking Judge Hamilton, was a suit challenging the Indiana House's practice of routinely bringing in Christian clergy who would offer Christian prayers before the session began, often invoking the name "Jesus." Because a lower court judge like Judge Hamilton must follow Supreme Court precedents, Hamilton followed the Supreme Court's decision in Marsh, and held that the Indiana House must stop opening its sessions with sectarian prayers.
In a post-judgment motion, the Speaker of the Indiana House posed the question of whether or not he could begin the legislative session with a prayer that used the word "Allah," Hamilton responded as follows:
The Speaker has also asked whether, for example, a Muslim imam may offer a prayer addressed to "Allah." The Arabic word "Allah" is used for "God" in Arabic translations of Jewish and Christian scriptures. If 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. 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.
In other words, Hamilton held that, because the Supreme Court held in Marsh that it is ok for a prayer to invoke the word "God," it is also ok for a legislative prayer to use the Arabic or Spanish or Greek word for God. Hamilton explicitly did not say that an Islamic prayer could be offered at the opening of a legislative session. To the contrary, he explicitly warned that if a legislative prayer "ever seem[s] to be advancing Islam" than the courts will treat that "problem" accordingly.
Judge Hamilton is nothing like the right-wing judges Inhofe got used to supporting in the Bush years. Unlike George Bush's judges, David Hamilton does not believe that corporations should have sweeping immunity from the law, and I suspect that this is the real reason why many conservatives are lining up against him. Conservatives 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.
Fortunately, Senator Lugar's support of Hamilton all but ensures that Hamilton will be confirmed once Senator-elect Franken arrives to cast the 60th vote for cloture. Even so, the fact that conservatives are planning to filibuster President Obama's very first nominee---especially a nominee as distinguished and well-qualified as David Hamilton---suggests that we can expect scorched-earth opposition to virtually all of Obama's nominees moving forward.
Disclaimer: The views expressed in this piece are the author's own, and should not be understood as representative of any organization he may be affiliated with.
(crossposted at Overruled)