Yesterday on the Senate floor, Sen. James Inhofe announced that he intended to filibuster Obama’s nomination of U.S. District Judge David Hamilton to the 7th Circuit Court of Appeals. Inhofe’s announcement comes nearly three weeks after the Republican membership of the Senate Judiciary Committee boycotted Hamilton’s hearing claiming that “they had not been given sufficient time to prepare for the hearing.” Inhofe’s filibuster is surprising given the fact that Hamilton is generally viewed as representing “some of [Indiana’s] traditionally moderate strain.”
Inhofe does not appear to have explained his decision to filibuster in front of his colleagues on the floor of the Senate. But in statements that he entered into the Congressional Record, Inhofe cited a 2005 ruling in Hinrichs v. Bosman in which Hamilton found that the Indiana House of Representatives may open proceedings with “non-sectarian prayers” only. Inhofe called it “insane” that the ruling would allow payers to invoke the name of “Allah” but not “Jesus”:
INHOFE: 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 find this line of reasoning to be insane. Who in this body would not identify the name of “Allah” with the religion of Islam any less than they would identify the name of Jesus with Christianity?
But as Overruled notes, Hamilton’s ruling was not particularly novel. Rather, Hamilton was upholding the Supreme Court’s ruling in Marsh v. Chambers, which “held that legislatures can open their session with a non-sectarian prayer, and that such a prayer could invoke ‘God,’” as long as the prayer was not meant to “proselytize or advance any one, or to disparage any other, faith or belief.”
Hamilton found that “sectarian content of the substantial majority of official prayers took the prayers outside the safe harbor the Supreme Court recognized for inclusive, non-sectarian legislative prayers in Marsh v. Chambers.” As Hamilton explained in a post-judgment ruling, “’Allah’ is used for ‘God’ in Arabic” and as such should be permitted:
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.
Additionally, Inhofe’s vow to filibuster is surprising given his previous insistence that filibustering judicial nominees is “not only an illegitimate use of a senator’s power, but is also literally unconstitutional.” As Steve Benen notes, in 2003, “Inhofe went so far as to say any senator who would dare filibuster a judicial nominee would necessarily be violating their oath to ‘support and defend the Constitution.’”