[Paul Cassell, March 17, 2009 at 12:15pm] Trackbacks
First Obama Court of Appeals Nominee

President Obama has just named his first court of appeals nominee -- district judge David Hamilton, nominated for the Seventh Circuit.

I had the pleasure of working with Judge Hamilton for several years on the Judicial Conference's Criminal Law Committee. He always struck me as a very sensible and reasonable person -- a good selection for the Seventh Circuit.

DangerMouse:
Sensible? I'm not so sure:


Hamilton has issued controversial rulings on abortion and prayer, but was reversed by the appellate court where he will serve if confirmed.

In 2005, he banned the Indiana House of Representatives' practice of opening the chamber's business with sectarian prayers. Hamilton, the son of a United Methodist minister, ruled that prayers mentioning Jesus Christ or using terms such as savior amounted to state endorsement of a religion. The circuit court later overturned the ruling.

In 2003, he 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 18 hours before the procedure. The 7th Circuit court also reversed that decision.


Guy seems like a typical lib: radical on abortion and hates Christianity. It's noteworthy that he tried to outlaw speech that regularly occurs in the chambers of Congress by Congressional ministers.

I wonder how many people will parrot the AP's propoganda that he's a moderate?
3.17.2009 12:24pm
DangerMouse:
More on this ultra-lib from NRO:


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 in Karlin, 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?


Republicans should definitely filibuster this guy.
3.17.2009 12:33pm
DangerMouse:
More about this lib here, too. It just gets worse:


Hamilton was a fundraiser for ACORN (nice ACORN payback, Mr. President) and served as vice president for litigation and a board member of the Indiana ACLU. In 1994, when President Clinton nominated him to the district court, the ABA rated him as ‘not qualified,’ apparently because of his almost purely political (as opposed to legal and judicial) experience.

Interestingly, he is also the brother-in-law of perhaps the hardest left radical Obama nominee to the Department of Justice, Dawn Johnsen.
3.17.2009 12:35pm
Libertarian1 (mail):
From my personal libertarian viewpoint he was correct in both decisions and I would hope as a member of the appellate court he would continue to make similar rulings. The establishment clause and the right to privacy seem to afford him a strong constitutional foundation for his opinions there.
3.17.2009 12:41pm
krs:
the hardest left radical

I understand the general point, but this is one of the worst expressions ever
3.17.2009 12:47pm
LawMan 5000:
The 7th Circuit opinion overruling Judge Hamilton's decision in the Indiana assembly prayer case is below. I think Judge Wood's dissent is persuasive, and I certainly don't think Judge Hamilton's decision is evidence that he is ultra-liberal or outside of the mainstream. Judge Hamilton has been a credit to the district court and will be a fine replacement for Judge Ripple.

http://www.circ7.dcn/tmp/LV0OV46O.pdf

As to the abortion case, the caustic language quoted in the post above was from Judge Easterbrook, with Judge Coffey as the second vote and Judge Wood dissenting. That case was far from the major rebuke to Judge Hamilton that DangerMouse portrays. 5 judges voted to rehear the case en banc, including Judge Posner.

http://www.circ7.dcn/tmp/LV0P92UL.pdf

You may disagree with Judge Hamilton, but there is no question that he is qualified to be an appellate court judge.
3.17.2009 12:55pm
rosetta's stones:
So in several controversial cases, the guy's decisions are overthrown on appeal, and the response is to elevate him to the court of appeals? Pretty neat trick.

Yeah, Obama's making a statement here, no doubt about it.
3.17.2009 12:56pm
OrinKerr:
Wait, LawMan 5000, you think we should actually read the cases rather than rely on a summary from the Associated Press? Jeez, you're so demanding.
3.17.2009 1:19pm
krs:
LawMan, I think the dcn domain may only be accessible to people working within the federal government.

Here's the assembly prayer case.
3.17.2009 1:35pm
RPT (mail):
Is there some sort of scale, such as that used in gemology, for determining the degree of "left hardness" or "left hardness"? Is this some kind of term of art?
3.17.2009 1:37pm
krs:
And here's the abortion case with the rebuke to Judge Hamilton. One of the footnotes, which appears after the majority opinion, notes that Judges Posner, Rovner, D. Wood, Evans and Williams voted to grant rehearing en banc.
3.17.2009 1:38pm
krs:
RPT, I think it's like a magazine quiz, where you ask someone a series of questions about their background and opinions and assign points to different answers, then add up the points at the end.

I imagine that Dawn Johnsen probably got a lot of points for her answer to this question:


34. Have you ever worked for any of the following organizations? (1 point for each, 2 points for each for which the work included legal responsibilities, and 3 points for each for which the job was a policy-level position)

ACLU
NARAL
PFAW
NOW
3.17.2009 1:43pm
Frater Plotter:
If you want to find hard liberals, come out to San Francisco for the Folsom Street Fair this September. Of course, you might find some hard anarchists, hard communists, and hard libertarians too. Even some hard Republicans; they'll be the ones in the leather masks.
3.17.2009 1:46pm
KeithK (mail):
It's safe to say that a conservative will have at least some issues with a large number of Obama's judicial nominees. It's a given. But unfortunately (from my perspective) Obama won and gets to make the nominations. With a strong majority of Democrats he doesn't need to nominate a lot of moderates. (I reserve judgement as to whether these two decisions mark this nominee as non-moderate.)
3.17.2009 1:53pm
Yinka Double Dare:
DangerMouse, all that you established is that 1) the AP, as usual, oversimplifies things when it comes to judicial opinions, and 2) the NRO doesn't like the judicial nominee of a Democrat. In other news, sky still blue, rain still wet.

The guy's a good judge by all indications, and endorsed by a Republican senator from Indiana. Filibuster ain't happening, you'll need someone far more egregious for that to happen.

And this ACORN-as-bogeyman thing is getting pretty old. Adjust your tinfoil hat, son, I think it must be on crooked.
3.17.2009 1:55pm
CleverScreenName (mail):
Frater Plotter:

Apparently, there's this conservative Christian group that, every year, dispatches "undercover operatives" to the Folsom Street Fair every year, to photograph and "expose" what they perceive to be the unforgivable depravity of the event.

Am I the only one to whom this seems a little bit fishy? Something tells me that they use those photos for purposes other than exposing sin.
3.17.2009 1:55pm
ASlyJD (mail):
RPT,

Perhaps we could call it the DangerMos scale?
3.17.2009 2:06pm
My Middle Name Is Ralph:

Guy seems like a typical lib: radical on abortion and hates Christianity.


If there is anyone who hates Christianity, it always those darned sons of United Methodist ministers.
3.17.2009 2:10pm
DangerMouse:
What exactly are the indications that this guy is a good judge?

All I know about this guy is that he was reversed on cases that clearly show how he was wrong, and that he was obstinately refusing to adhere to existing law on child murder because it didn't favor his own radical demands to make it easier to commit.
3.17.2009 2:10pm
OrinKerr:
Dangermouse,

I suspect we can save a lot of time in future comment threads by stipulating that you will think that all Obama judicial nominees are extreme libs who should be filibustered. If you'r up for it, we can call it the Dangermouse Stipulation, and just invoke it by name at the beginning of the thread.
3.17.2009 2:37pm
Terrivus:
What exactly are the indications that this guy is a good judge?

Well, how about the very post to which you're commenting? A former federal judge -- one who likely characterizes himself, and is characterized by others, as "conservative" -- describes him as "a very sensible and reasonable person -- a good selection for the Seventh Circuit."

Pray tell, what does Judge Cassell -- who actually knows and has worked closely with Judge Hamilton -- not know that you somehow know? Or are you calling Judge Cassel uninformed or, worse, a dupe?

I don't know Judge Hamilton, I've never practiced in front of him, and I've never read anything he's written. But as between (a) a former federal judge, and (b) a random internet commenter, you'll pardon me if I give Judge Cassell's views a little more credibility than your own.
3.17.2009 2:41pm
second history:
Republicans should definitely filibuster this guy.

Bring it on; and let the Democrats impose the nuclear option and prevent filibusters on all nominations once and for all.
3.17.2009 2:44pm
Martha (mail):
I believe that Judge Hamilton ruled that sectarian prayer was unconstitutional because it fell outside of his interpretation of Marsh's legislative prayer safe harbor. The Court never ruled on sectarian prayer since it was not the issue in Marsh and it is currently splitting courts all over the country. Indeed, the Court should grant cert to bring more clarity to the issue and outline what is and what is not constitutionally permisslbe. Thus, while some may disagree with Judge Hamilton's interpretation, it is no where near outside of the mainstream and he was not bucking any sort of binding precedent. Further, he was overturned on standing issues, not on actual establishment clause jurisprudence. He was also advocating an interpretation of evaluating legislative prayer adopted by Judge McConnell - hardly a sweatheart of liberal activists. And, Mr. Kerr, very funny comment.
3.17.2009 3:01pm
DangerMouse:
That's real thoughtful, Orin. I'd appreciate that. But it's not good enough unless the reasons are listed out in each thread. I'm more than glad to do that. Please be sure to let me know well enough in advance when you want to post on those issues, so I can have time to edit your post appropriately.

It will save a lot of time on comment threads. And that's what we all want.
3.17.2009 3:28pm
Pro Natura (mail):
Obama: A chicken in every pot and a Reinhardt on every federal circuit.
3.17.2009 4:05pm
David M. Nieporent (www):
In 2005, he banned the Indiana House of Representatives' practice of opening the chamber's business with sectarian prayers. Hamilton, the son of a United Methodist minister, ruled that prayers mentioning Jesus Christ or using terms such as savior amounted to state endorsement of a religion. The circuit court later overturned the ruling.
Wait a minute. Even were merely being overturned -- 2-1 -- somehow proof that one was a crazy liberal, that's not in the least an accurate characterization of what happened.

He did rule that their prayers were unconstitutional in 2005. The circuit court later overturned the ruling -- on the grounds that plaintiffs didn't have standing. But that reasoning was based on the Supreme Court's intervening ruling in Hein. In other words, Hamilton wasn't wrong when he ruled; rather the law changed in the interim. Not only could he not have predicted that, but he's not allowed to do so; he has to follow existing precedent even if he thinks it wrong or predicts that it will be changed.
3.17.2009 4:33pm
OrinKerr:
Dangermouse writes:
That's real thoughtful, Orin. I'd appreciate that. But it's not good enough unless the reasons are listed out in each thread. I'm more than glad to do that. Please be sure to let me know well enough in advance when you want to post on those issues, so I can have time to edit your post appropriately.

It will save a lot of time on comment threads. And that's what we all want.
Dangermouse, the problem is that "listing out reasons" is only "good" if the reasons are thoughtful and well-informed. If you plan to just cut and paste from Bench Memos and then add that you think the candidate of the day is an left-wing extremist who should be filibustered based on what Bench Memos is saying, "listing out reasons" is not going to be helpful. I mean, there are blogs for that, don't get me wrong, but this blog isn't one of them.
3.17.2009 4:45pm
DangerMouse:
If you plan to just cut and paste from Bench Memos and then add that you think the candidate of the day is an left-wing extremist who should be filibustered based on what Bench Memos is saying, "listing out reasons" is not going to be helpful.

It depends on what they're saying. I think it's helpful. It's certainly more detailed than a mere Stipulation, which by the way was your suggestion.
3.17.2009 5:04pm
RPT (mail):
Wow, what has provoked the rudeness of these posters towards Mr. Kerr today? DM here, Phil Byler in the thread above? A little respect would be appropriate and prudent, whichever side of the divide you're on.
3.17.2009 5:41pm
frankcross (mail):
It might seem logical that one could only critique the content of judicial opinions if you actually read them and then had trenchant criticisms of the reasoning.

Or, you could be a closed minded ideologue.
3.17.2009 6:45pm
Nathan_M (mail):

the hardest left radical

This would have been an excellent example in the thread discussing the occasional importance of hyphens the VC had a while back.
3.17.2009 8:46pm
jwilcox2009 (mail):
RPT:

To be fair, Orin picked the fight in this thread.
3.17.2009 11:46pm
LM (mail):
jwilcox2009,

It would be fair if it was true. There's a history you may not be aware of (i.e., VC history, DM history, OK history, DM and OK history). In that context, Orin didn't pick this fight.
3.18.2009 5:31pm
byomtov (mail):
Hamilton was a fundraiser for ACORN (nice ACORN payback, Mr. President)

Hamilton worked for one month, in 1979, at age 22, as a canvasser raising money for ACORN.

And some people don't understand why NRO is widely regarded as a joke.
3.19.2009 12:16pm

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