By Michael A. Fletcher
Washington Post Staff Writer
Wednesday, March 18, 2009
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 White House held out Hamilton as a prototype for the nominees Obama will seek as he reshapes the federal appeals courts -- and by extension, the laws governing contentious social issues such as abortion and affirmative action -- during his presidency. Currently, there are 17 vacancies on the nation's appeals courts, which are organized into 12 circuits across the country.
Meanwhile, with the oldest Supreme Court justice 89 and three others older than 70, it is widely expected that Obama will fill one -- if not more -- high court vacancies during his tenure.
Obama named Hamilton, 51, to a vacancy on the U.S. Court of Appeals for the 7th Circuit, a choice administration officials said signals his intention to pick judicial moderates with diverse résumés and a record of what he considers good judgment and "empathy" for the people involved in cases before the courts.
"Judge Hamilton has a long and impressive record of service and a history of handing down fair and judicious decisions," Obama said in a statement. "He will be a thoughtful and distinguished addition to the 7th Circuit."
Daniel O. Conkle, a law professor at Indiana University's Maurer School of Law, called the nomination of Hamilton " a noncontroversial appointment that, I suspect, will be supported by both Republicans and Democrats."
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."
Hamilton was raised in Indiana and attended Haverford College and Yale Law School, and he won a Fulbright fellowship before clerking on the 7th Circuit appellate court. He also worked as a general counsel to Sen. Evan Bayh (D) when Bayh was governor of Indiana, and served as chairman of the Indiana Ethics Commission. He was active in the Indiana branch of the American Civil Liberties Union and is on the advisory board of the Center for Constitutional Democracy in Plural Societies, which has studied the effect of constitutional ideas across the globe.
President Bill Clinton appointed Hamilton to the district court in Indianapolis in 1994, and he was elevated to chief judge last year. Hamilton's legal background, moderate profile and varied experience make him "precisely the kind of person that President Obama wants on the federal appellate bench," said a senior administration official who spoke on the condition of anonymity before the president's announcement.
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.
Still, Sen. Richard G. Lugar (R-Ind.) has said he would back Hamilton during the Senate's confirmation process, an endorsement that the White House interpreted as a signal of strong bipartisan support. "I enthusiastically support the Senate confirmation of David Hamilton for U.S. 7th Circuit Court of Appeals," Lugar said in a statement released by the White House.
Going forward, the White House said it would sound out Senate Republicans on judicial appointments in an effort to "put the confirmation wars behind us." But the ideological battle over court nominees was already raging anew in the hours after Hamilton's nomination.
The Judicial Confirmation Network, a group that supports conservative judicial nominees, painted Hamilton as a liberal whom the Obama administration was attempting to disguise as a moderate. Pointing to what the White House says was Hamilton's work raising contributions door-to-door for the advocacy group ACORN for one month after college, and his work on the board of the ACLU, the JCN called Hamilton "an ultra-liberal."
In addition, many conservatives have waved off Obama's stated interest in ending the sharp-edged battles over judicial nominations. So far, Obama has not moved to fulfill a request from all 41 GOP senators who have asked him to rename some of the judicial nominees who went unconfirmed last year after being appointed by President George W. Bush. By contrast, in his early months in office, Bush appointed two judges who had been nominated by President Bill Clinton but were blocked by GOP senators -- a bipartisan gesture that was encouraged by several Republican senators.
In addition, critics point out that as a senator, Obama was a willing participant in the confirmation wars who voted against the Supreme Court nominations of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.
Conservatives also ridiculed Obama's interest in the "empathy" demonstrated by a prospective nominee, saying that it has nothing to do with a judge's work of interpreting statutes and the Constitution. "Who's to say who you are supposed to be empathetic toward?" said Curt Levey, executive director of the Committee for Justice, a conservative legal advocacy group.
Liberal activists defended Obama's standard, calling it central to the role of courts in society. "What he is signaling, which is very important, is an acknowledgment of the importance of having judges who understand how the law affects everyday Americans," said Nan Aron, president of the Alliance for Justice.