A TALE OF TWO NOMINEES: David Hamilton and Goodwin Liu

Judicature, May/June 2011 | Go to article overview

A TALE OF TWO NOMINEES: David Hamilton and Goodwin Liu


There are two nominees whose advice and consent journeys best represent the administration's early hopes for smooth success in the judicial selection process and its palpable disappointment as the 111th congressional session drew to a close. The two are the President's first selection, David Hamilton, who successfully was seated on the Seventh Circuit Court of Appeals. The second was Goodwin Liu, whose subsequent nomination to the Ninth Circuit provoked the greatest controversy among all Obama picks, languished through committee processes, and was never called up for a floor vote in the Senate,

By all accounts Hamilton, a veteran of a decade and a half of district court service, was seen to be a shoo in, a symbol from die Obama camp of what the Republicans coiUd expect from the President in his nominations. Hamilton was a widely respected, low-key and low-profile nominee who enjoyed home-state support from senior Senate Republican, Richard Lugar, and was a close relative of much beloved retired Democratic member of the House of Representatives from Indiana, Lee Hamilton. Obama's first nominee was seen by many as a brilliant choice, offering a sharp contrast bodi in politics and style to die first 1 1 nominees, all to the courts of appeal, introduced by President W. Bush in a Rose Garden ceremony. Among die Bush eleven were some of the President's most controversial picks, some of whom would never be confirmed. In contrast, Hamilton was nominated with little fanfare and as a lone nominee without stable mates, an announcement of the nomination substituting for a Rose Garden introduction.

In characterizing the Hamilton nomination, a senior Democratic committee aide noted:

This is very much in die spirit of nominees that Bayh and Lugar had sent up for Bush diat were also successful stories....That's a signal. Instead of sending up what Bush did, an ideological slate, I'm sending one that Republicans like.

When the nomination faced a lengthy delay in committee processes and, then, a tepid filibuster effort on the floor before Hamilton was evenuially confirmed, this staff member was astonished. "Filibuster? I mean this guy is a moderate. On a left right scale of one to ten he's maybe a four. Filibuster? And diat sort of told the tale."

Recall that this nomination was made after the Republican caucus had issued its public letter placing the President on notice that if he did not appropriately consult with its senators, they would block his nominees.

So you could argue that die President reads that letter and says, "Alright, well here's my first pick. It's one with die support of die senior longest serving Republican Senator, Dick Lugar. If it meets your criteria for doing this, I'm going to make that pick as a symbol of working with you. Of showing a different way forward on this. And I'm also not waiting until I have a slate of nine or ten. I'm doing the one that I've got first and ready." And we say "Great, what a good pick. This should be an easy one to set die tone with." So they say "We're going to filibuster if we're not consulted." They are consulted and they filibuster anyway.

From the perspective of Danielle Cutrona, Judiciary Committee Minority Chief Counsel for Nominations, a different sort of signal was being sent by the President.

There were other nominees diat were left at the end of President Bush's term diat President Obama could have renominated, extended an olive branch, much like President Bush did at die beginning of his term and he didn't do it. And I think diat sends a signal....lf they really thought he was a moderate, bipartisan consensus pick then tliey're mare out of touch than I thought they were. There was so much in his record diat was objectionable to so many people.

Interestingly, Cutrona's characterization of the Hamilton nomination did not fly with Curt Levey, a like minded conservative opponent of the President:

I think we all sort of agree now, to be honest, that he wasn't diat objectionable any more than he was first. …

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