COMMITTEE FOR JUSTICE
1920 L Street, N.W., Suite 200
Washington, DC 20036

FOR IMMEDIATE RELEASE: Monday, November 16, 2009
CONTACT: Curt Levey, (202) 270-7748,

Judge Hamilton & Nidal Hasan
— PC Run Amok

Judge David Hamilton

This week, the Senate votes on President Obama’s nomination of District Court Judge David Hamilton to the Seventh Circuit. Because of Hamilton’s fundraising activities for ACORN, his leadership positions with the Indiana branch of the ACLU, his statements supporting judicial activism, and most importantly, his rulings putting liberal ideology above the rule of law, he is the first and only Obama circuit nominee to draw heated opposition.

There are many examples of Judge Hamilton’s tendency towards liberal judicial activism (see letter from Sen. Sessions). However, the most bizarre and controversial instance is Hamilton’s 2005 ruling prohibiting prayers that mention Jesus Christ in the Indiana House of Representatives, but allowing prayers that mention Allah. While troubling in any context, the religious double standard in Hamilton’s ruling is particularly deserving of close scrutiny in light of Major Nidal Hasan’s recent shooting rampage at Fort Hood.

The warning signs preceding the rampage and ignored by the Army are many and well documented. Hasan’s business cards listing his affiliation as “SoA” – the jihadist acronym for Soldier of Allah – and his Walter Reed Army Hospital PowerPoint presentation ending with “We love death more then [sic] you love life!” are just two examples. Although there is some debate about the motivation for Hasan’s murderous rampage, there is also a growing consensus that political correctness played at least some role in the Army’s failure to follow up on the warning signs.

Put simply, pressure to be politically correct prevented Army personnel from properly investigating and perhaps disciplining a Muslim officer. As many have pointed out, a Christian officer who displayed equally troubling behavior is unlikely to have received the same hands-off response.

The tragedy at Fort Hood has raised awareness and concern about a religious double standard that pervades the American establishment, from military bases to legal theory, and subjects minority religions – particularly Islam of late – to less scrutiny than Christianity. That new awareness demands that the Senate take a closer look at Judge Hamilton’s differential treatment of Islam and Christianity in his 2005 ruling in Hinrichs v. Bosma.

In Hinrichs, the ACLU – whose board Hamilton had served on – sued the Speaker of the Indiana House on behalf of several taxpayers, claiming that most of the prayers that opened House sessions were “sectarian Christian prayers” in violation of the Constitution’s Establishment Clause. Judge Hamilton agreed and prohibited prayers that “use Christ’s name or title.” However, at the same time, he saw no problem with prayers mentioning Allah.

In fact, Judge Hamilton bent over backwards to justify this distinction by pretending that “Allah” is used in Muslim prayer only to refer to a non-sectarian, generic deity. Here, Hamilton explains why “a Muslim imam may offer a prayer addressed to ‘Allah’” in the Indiana House:

“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, … or any other language’s terms in addressing the God who is the focus of the non-sectarian prayers …, the court sees little risk that the choice of language would advance a particular religion or disparage others.”

On the surface, Judge Hamilton’s ruling has nothing to do with Nidal Hasan’s violent rampage. But neither could have taken place without a religious double standard borne of political correctness. Even before the tragedy at Fort Hood, Judge Hamilton’s background and record of judicial activism distinguished him as Obama’s most radical appeals court nominee and demanded a thorough debate of his record on the Senate floor. In the wake of the Army’s failure to prevent the tragedy, the need for debate is only heightened.

Unfortunately, Senate Majority Leader Reid’s cloture motion, to be voted on tomorrow, aims to prevent careful debate of the Hamilton nomination. Senators on both sides of the aisle need to be reminded that a vote for cloture is a vote against debate. Senators who are serious about examining the causes and consequences of the religious double standard at work in Hinrichs and at Fort Hood, or who are concerned about other aspects of Hamilton’s activist record, must vote no on closure tomorrow to ensure a thorough debate. Only after such a debate, can senators make an intelligent decision about whether to promote Judge Hamilton to the Seventh Circuit.

At some point, senators opposed to Hamilton may have to decide whether to attempt a filibuster to prevent a confirmation vote (CFJ Executive Director Curt Levey addresses that issue in a Hill article). But tomorrow, the issue before senators is only whether to allow a through debate of Judge Hamilton’s record.

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Curt Levey, after graduating Harvard Law School with honors and clerking for the U.S. Court of Appeals, Mr. Levey served as Director of Legal & Public Affairs at the Center for Individual Rights, where he worked on landmark Supreme Court cases involving affirmative action and federalism. Most recently, Mr. Levey headed the Title IX policy group at the U.S. Education Department’s Office for Civil Rights. He also serves on the executive committee of the Federalist Society’s civil rights practice group.

Mr. Levey’s op-eds have appeared in leading national and legal publications. He has been a guest on more than one hundred radio and television programs, and he has spoken about the law to dozens of live audiences, including ones at the nation's top law schools.

He also has an M.S. and B.A. in computer science from Brown University. He worked in the field of artificial intelligence (AI) before attending law school and invented a new type of AI technology, for which he wrote a successful patent application.

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