The Judicial Nominee You're Not Hearing About: David Hamilton

On June 4, the Senate Judiciary Committee voted to approve the nomination of David Frank Hamilton as United States Circuit Judge for the Seventh Circuit. At a cursory hearing — rushed to the committee after only two weeks had passed since the President nominated Hamilton — Judiciary Committee Chairman Patrick Leahy (D.-Vt.) tossed softball questions to Hamilton about his more controversial decisions.

Republicans boycotted Hamilton’s hearing, claiming that Democrats had not given them enough time to prepare.

Conservatives reacted strongly, arguing that Hamilton falls into a line of liberal judges considered by the Obama administration who rule on biased and unconstitutional grounds.

Liberals think that conservatives are too hasty to condemn judicial appointees and inaccurately demonize their — as Obama says — “empathy.” Sen. Dianne Feinstein (D.-Calif.) said that conservatives are manipulating this “empathy” to be the “Darth Vader of any judicial appointment.”

Hardly. Conservatives don’t want judges who are sociopaths, devoid of moral responsibility or social conscience. But conservatives are making an entirely different point. Empathy — the ability to vicariously place oneself in the person of another — isn’t the job of a judge under the Constitution and our system of law. And “empathy” is far from a conclusion of the Hamilton debate.

Hamilton’s brief stint at ACORN as a canvasser has been harped upon endlessly by the right-wing blogosphere.

Liberals draw attention to his academic, professional and pro bono credentials.

This is about as far as partisan mudslinging has gone. Since the matter has become so heated and (in some cases) irrational, Hamilton’s answers to the Judicial Nominees Questionnaire should be deferred to — essentially, the most accurate articulation of his legal mindset, priorities and ideals because it is in his own words.

The 62-page questionnaire is testament to Hamilton’s qualification as a lawyer, concerned citizen and, most glaringly, an outright left-of-moderate pro-abortion liberal. This conclusion is drawn not only from his court rulings, but also from his various partisan affiliations and meandering responses to questions.

A member of the American Civil Liberties Union, Hamilton has served as a “volunteer attorney,” “board member” and “vice president of litigation” of its localized branch, the Indiana Civil Liberties Union.

Interestingly, in his “Membership” list, he only mentions that he served as “Vice president for litigation” and “board member” of the ICLU from 1987-88. He neither provides a full timeline of his membership to the ICLU nor does he cite his ACLU membership.

He fails to mention this fact in Sect. 24, “Potential Conflicts of Interest,” but does pledge to “avoid issues” involving the Center for Constitutional Democracy in Plural Societies, another organization in which he has been involved.

Why omit the ACLU and ICLU?

He omitted these organizations because on multiple occasions, he tried cases on which representatives of these groups served as counsel for plaintiffs.

On his two most questionable cases, Hinrichs v. Bosma (2005) and A Woman’s Choice — East Side Women’s Clinic v. Newman (2001), the ACLU not only served as counsel for plaintiffs, but it was represented in each case by the same man, Kenneth J. Falk. Both cases dealt with extremely contested “constitutional” topics. In the former, Hamilton ruled that sectarian prayers during House sessions violated the Establishment Clause. Oddly, he ruled that Christ’s name cannot be used while “Allah” can. In the latter, he muddled Indiana’s informed-consent abortion laws, which undermined a modest step to reduce the number of abortions and flourished an outright affront to legal precedent.

Which seems to be a clear case of legislating from the bench.

In 2000, Hamilton issued an injunction in Williams v. Humphreys. The counsel for plaintiffs consisted of two ICLU members. In 2008 he found a Fourth Amendment violation in Doe v. Prosecutor. The counsel for plaintiffs represented the ACLU.

Hamilton has other affiliations that perhaps merit more scrutiny than have been given. His descriptions and explanations of these are intentionally vague: His doubletalk compounds until it reaches a mass of meaningless babble that skims not even the surface of legal reasoning.

For instance, from 1991 to 1994 he served as Chair of the Indiana State Ethics Commission, which, among other things, is “responsible for developing, implementing, and enforcing ethical standards for the executive branch of state government.” Although he issued no reports during his tenure, he far from explains the function and standpoint of the Commission.

Ultimately, his answers are evasive in two ways: They are meaninglessly worded or bafflingly truncated.

One odd affiliation he mentions is to the Mayor’s Task Force on Police Performance Assessment from October 1992 to 1994. The Task Force seeks to “[involve] civilians in the review of police-action shootings, uses of deadly force, and civilian complaints against police officers.” Sounds like a noble and legitimate effort. After all, police officers are responsible for carrying out the law, for protecting the rights of citizens. There should be oversight.

But Hamilton brushes aside the proposal the Task Force drew up during his membership, contending that after the proposal was made public it “quickly died from lack of support.” Although such reports are not requested in the questionnaire’s instructions, Hamilton makes the notably lame and evasive statement: “Neither the chairman of the task force nor I have been able to locate a copy of the report.”


Throughout, Hamilton’s answers, ironically, are colloquial yet unrevealing. When listing his “Legal Activities,” he cites his participation in the 1989-90 gubernatorial administration of Evan Bayh as the “most significant.” Apparently, the administration lacked “significant experience” and he had to take responsibility for sundry decisions. Gingerly dancing around full-on description of his role in the administration, he restricts himself to mentioning that he fiddled with “legal dimension” of issues.

His explanation plunges into the same vapid language of “ethics” and the conflicts between “state government” and “public life” that are rife throughout his responses. Just as soon as he lays these topics on the table, he quickly snatches them up again.

“We faced challenges ranging from personnel decisions and ethics policies to long-term strategic goals,” he writes. “I participated in a wide variety of issues and decisions to try to avoid legal problems and recognize the opportunities we had.”

Leahy’s August 29 testimony regarding Hamilton’s nomination was just as muddling: Instead of specifically naming Hamilton’s commendable decisions and accomplishments, Leahy instead constantly refers to what he describes bipartisan support, which amounts to nothing more than an unconvincing nod from the unconvincing Sen. Richard Lugar (R.-Ind.). Lugar, as one may guess, more than occasionally sways left.

His “bipartisan” support does not merit Hamilton’s confirmation “without further delay,” as Leahy urges. Has public debate become a bad thing? Should the confirmation of all judges be “expedited”?

“I believe our confirmation decisions should not be based on partisan considerations, much less on how we hope or predict a given judicial nominee will ‘vote’ on particular issues of public moment or controversy,” said Sen. Lugar on April 1.

Will Lugar’s quick fade on Hamilton presage the same for him with respect to Supreme Court nominee Sonia Sotomayor?