In a June 15 USA Today article, after reporting that Sen. Jeff Sessions (R-AL) was “concerned President Obama is driving federal courts 'far to the left' by choosing 'activist' judges for the bench,” reporters John Fritze and Joan Biskupic wrote that Sessions “singled out” 7th U.S. Circuit Court of Appeals nominee David Hamilton and “focused on two Hamilton rulings.” Fritze and Biskupic then misrepresented the facts in one of the two cases and the scope of Hamilton's decision in the other.

They wrote:

In one, Hamilton invalidated an Indiana law requiring women seeking abortions to obtain information about the procedure's risks. In the other, Hamilton forbade references to Jesus Christ in opening prayers at the Indiana Legislature.

But in his 2001 decision in A Woman's Choice -- East Side Women's Clinic v. Scott C. Newman, Hamilton ultimately did not strike down the part of the Indiana law that required that women be provided with “information,” but only the law's requirement that the doctor, nurse, or midwife provide that information to the woman in person. Contrary to the USA Today's report, the law that Hamilton struck down did not merely require “women seeking abortions to obtain information about the procedure's risks”; it required that, at least 18 hours before an abortion could be performed, a doctor, nurse, or midwife provide, in person, a woman seeking an abortion with information not only about the procedure's risks, but also about the “probable gestational age of the fetus.”

Ultimately, as the USA Today article noted, the 7th Circuit reversed Hamilton's 2001 decision. However, it was not unanimous: One judge on the three-judge panel voted to uphold Hamilton's decision.

Fritze and Biskupic further wrote of “the other” case: “Hamilton forbade references to Jesus Christ in opening prayers at the Indiana Legislature.” But Hamilton's ruling was not limited to a prohibition against “references to Jesus Christ.” In fact, in Anthony Hinrichs, et al. v. Brian Bosma, not only did Hamilton write that prayer in the Indiana House of Representatives “should refrain from using Christ's name or title or any other denominational appeal [emphasis added]” but also 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.” From Hamilton's decision:

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. See Simpson v. Chesterfield County, 404 F.3d at 278-79, 284.

Moreover, while the 7th Circuit did reverse Hamilton's decision, as the USA Today article noted, it did so because it decided that in light of the Supreme Court's 2007 decision in Hein v. Freedom from Religion Foundation Inc. -- decided after the case had already been briefed to the appeals court -- the federal courts had no jurisdiction.

Moreover, Fritze and Biskupic uncritically quoted Sessions stating, “I'm troubled, I have to say, by President Obama's philosophy of judging. ... When he talks about wanting a judge to show empathy, that's very troubling to me,” and went on to report Sessions criticizing Supreme Court nominee Sonia Sotomayor for “seem[ing] to be willing to accept that a judge's rulings may be influenced by the judge's personal backgrounds or feelings.” Fritze and Biskupic did not point out conservatives, including Justices Clarence Thomas and Samuel Alito at their Supreme Court nomination hearings, each acknowledged the significant impact their background and personal experiences have had on their judicial thinking. Alito asserted during his 2006 hearing: “When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.” During Thomas' confirmation hearing, Sen. Herb Kohl (D-WI) asked, “I'd like to ask you why you want this job?” Thomas replied in part: “I believe, Senator, that I can make a contribution, that I can bring something different to the Court, that I can walk in the shoes of the people who are affected by what the Court does.” Numerous Republicans -- including former Sens. Strom Thurmond (SC), Al D'Amato (NY), and Mike DeWine (OH) -- have previously praised compassion as a judicial attribute and highlighted the importance of the personal experiences of judicial nominees.

From the June 15 USA Today article:

The top Republican on the Senate committee reviewing Sonia Sotomayor's nomination to the Supreme Court said Monday that he is concerned President Obama is driving federal courts “far to the left” by choosing “activist” judges for the bench.

Sen. Jeff Sessions, R-Ala., said Obama's judicial nominees, including Sotomayor and three others to the U.S. Court of Appeals, raise questions about what role a judge's background should play in deciding cases.

“I'm troubled, I have to say, by President Obama's philosophy of judging,” Sessions, a Senate Judiciary Committee member, told USA TODAY and Gannett Washington Bureau reporters. “When he talks about wanting a judge to show empathy, that's very troubling to me.”

Sessions, a former prosecutor, said he does not expect Republicans to filibuster Sotomayor's nomination, but he said she is the latest in a pattern of Obama nominees he has found troublesome.

“She seems to be willing to accept that a judge's rulings may be influenced by the judge's personal backgrounds or feelings, which is sort of what President Obama has said,” Sessions said.

Hearings for Sotomayor's nomination are scheduled to begin July 13.

Sessions singled out three other nominations: David Hamilton of Indiana for the Chicago-based U.S. Court of Appeals for the 7th Circuit; Andre Davis of Maryland for the Richmond, Va.-based U.S. Court of Appeals for the 4th Circuit; and Gerard Lynch of New York for the New York City-based 2nd Circuit.

University of Pittsburgh law professor Arthur Hellman, who has studied judicial appointments, said it is difficult to generalize about any Obama pattern with so few nominations.

“The differences struck me more than any similarities,” Hellman said of the nominees. “Lynch is a straight-down-the-middle former prosecutor. With Hamilton, you have someone who happens to have two high-profile cases in two of the most contested areas of the law, abortion and prayer.”

Sessions focused on two Hamilton rulings. In one, Hamilton invalidated an Indiana law requiring women seeking abortions to obtain information about the procedure's risks. In the other, Hamilton forbade references to Jesus Christ in opening prayers at the Indiana Legislature. Both decisions were reversed.