March 18, 2009

Obama Makes First Judicial Appointment

President Obama has announced the nomination of U.S. District Judge David Hamilton to the Seventh Circuit.  Hamilton was appointed by President Clinton in 1994 despite a "not qualified" rating by the ABA.  He was deemed "not qualified" apparently because his background was almost purely political where he spent time as vice president for litigation of the Indiana branch of the ACLU among other political positions.

In addition to his far-left political activism, Hamilton's tenure on the bench in Indiana was filled with controversy as the Washington Post points out.

"Hamilton has been involved in several controversial cases. In 2005, he ruled that the daily invocation of the Indiana House too often referred to Jesus Christ and a Christian god, in violation of the Constitution, which forbids the government to show preference for any religious denomination. The decision was overturned on appeal on technical grounds.

In 2003, Hamilton struck down part of an Indiana law requiring abortion clinics to give women information about alternatives to abortion in the presence of a physician or nurse. The information had to be given to women 18 hours before the procedure, requiring them to make two visits to the doctor's office to obtain the procedure. That decision was also overturned on appeal."

Despite these positions the New York Times seems intent to carry the Administration's water on this by running an article titled, "Moderate Is Said to Be Pick for Court."  If this is the type of judge that the Times views as a moderate, no wonder it sees our nation as one "saddled with hard-right Republican judges who are using the courts to push an agenda of hostility to civil rights and civil liberties; reflexive deference to corporations; and shutting the courthouse door to worthy legal claims."

Ed Whelan is as confused as I as to what makes Hamilton a "moderate."

It’s far from clear what justifies the article’s characterization of Hamilton as a “moderate” (or, as the article oddly puts it, as “represent[ing] some of his state’s traditionally moderate strain”—how does one represent some of a strain?).  Was it perhaps Hamilton’s service as vice president for litigation, and as a board member, of the Indiana branch of the ACLU?  Or maybe Hamilton’s extraordinary seven-year-long series of rulings obstructing Indiana’s implementation of its law providing for informed consent on abortion?  That obstruction elicited this strong statement (emphasis added) from the Seventh Circuit panel majority that overturned Hamilton:


For seven years Indiana has been prevented from enforcing a statute materially identical to a law held valid by the Supreme Court in Casey, by this court inKarlin, and by the fifth circuit in Barnes. No court anywhere in the country (other than one district judge in Indiana [i.e., Hamilton]) has held any similar law invalid in the years since Casey. Although Salerno does not foreclose all pre-enforcement challenges to abortion laws, it is an abuse of discretion for a district judge to issue a pre-enforcement injunction while the effects of the law (and reasons for those effects) are open to debate.


Or perhaps Hamilton’s inventive invocation of substantive due process to suppress evidence of a criminal defendant’s possession of cocaine, a ruling that, alas, was unanimously reversed by the Seventh Circuit?


With “moderates” like Hamilton, imagine what Obama’s “liberal” nominees will look like.

If Obama was hoping to make the partisan judicial battles a thing of the past, this appointment certainly starts him off on the wrong foot.

Needless to say, I patiently await Obama to answer the bipartisan tone set by President Bush at the beginning of his administration.

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