Obama appoints first appellate court justice

posted at 8:57 am on March 18, 2009 by Ed Morrissey
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Barack Obama has made his first appellate court appointment, and it promises to keep the issues of judges at the top echelon of partisan battles.  David Hamilton will move from the federal district court where he has served since being appointed by Bill Clinton in 1994 to the Seventh Circuit.  Obama proclaims him as the model of moderation that he promised to appoint during his campaign, but conservatives note that he’s only a moderate from the point of view of People for the American Way:

President Obama yesterday made his first judicial appointment, naming U.S. District Judge David F. Hamilton to the federal appeals court, a choice excoriated by some conservatives even as the White House touted him as the type of moderate who could cool the nation’s long-simmering judicial battles. …

The nominee was also cheered by liberal advocacy groups. “David Hamilton is an ideal choice for this seat,” said Kathryn Kolbert, president of People for the American Way. “Throughout his career, he has demonstrated a willingness to put principle ahead of politics and bring an open mind to every case.”

When the hard-Left advocacy group PFAW endorses someone, conservatives like to take a second look.  In this case, that second look may be on both ideology and competency.  Conservative activists note that Hamilton likes to take fliers that the appellate courts have had to reverse:

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.

That’s the Washington Post noting that “several controversial cases”.  Ed Whelan at Bench Memos notes that the same Seventh Circuit found it necessary to smack Hamilton hard for what it called an “abuse of discretion” in one of the abortion cases Hamilton heard, and wonders where the “moderate” label originates:

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?

Unanimously reversed.  That neither sounds moderate nor competent to me.

As a matter of course, presidents should be allowed great leeway in judicial appointments.  As we argued during the Bush administration, elections have consequences, and one of them is the appointment of federal judges.  The Constitution requires the “advice and consent” of the Senate, and all judicial appointments should get up-or-down votes in the Senate.  However, let’s not pretend that Obama has nominated a moderate.  He’s appointing a liberal, pro-abortion, pro-defendant hack that only PFAW will love.  That’s certainly Obama’s prerogative, but he still needs to be held accountable with accurate reporting on Hamilton.

Addendum: Lesson learned from doing a Google search for Judge Hamilton’s head shot: Never do a Google image search for “David Hamilton” with SafeSearch off.  Eeesh.

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