Obama judicial pick will test pledge to end confirmation wars

McClatchy NewspapersMarch 17, 2009 

WASHINGTON — President Barack Obama held out his first judicial nominee on Tuesday as evidence that he wants to end the political sniping over judges that marked much of the past eight years.

In a statement, Obama praised David F. Hamilton of Indiana, his pick for the U.S. 7th Circuit Court of Appeals, for "a history of handing down fair and judicious decisions."

Separately, a senior administration official involved in the selection process said Hamilton, who turns 52 this year, embodied the president's desire for nominees with "intellectual credentials" and bipartisan appeal but also "a sense of how people live" and "the ability or experience to understand the plight of real people," something Obama had spoken about on the campaign trail.

The official spoke anonymously, a condition the White House has been imposing in connection with many briefings arranged by the administration.

"We're trying to set a tone here," the official said. "We're trying to send a message that we're going to spend time consulting in the Senate. We are eager to put the confirmation wars behind us."

The official also said "the same principles" would apply if the administration finds itself with a Supreme Court vacancy down the road.

Conservative critics raised some concerns about nominee Hamilton, a federal district judge in Indianapolis who was appointed by President Bill Clinton in 1994. They flagged some of his district court rulings and also noted his earlier advocacy with the Indiana chapter of the American Civil Liberties Union.

Last year, Hamilton struck down an Indiana law that required sex offenders to submit to routine and warrantless law enforcement monitoring of their Internet activity. Hamilton said it violated the U.S. Constitution.

"The prospect of searches 'at any time' without a search warrant, without probable cause, and without even reasonable suspicion of wrongdoing, would dramatically impair the privacy these plaintiffs have the right to enjoy in their own homes under the Fourth Amendment," he wrote.

In 2005, Hamilton ordered the Indiana House of Representatives to avoid mentioning Jesus Christ by name or using terms such as "savior" during official prayers because they were "systematically sectarian" and therefore unconstitutional. A federal appeals court later reversed him on a technicality.

In 2003, he struck down part of an Indiana law requiring abortion clinics to give women information about alternatives to abortion. That decision also was overturned.

However, Hamilton's nomination has some important bipartisan support, including from Indiana's U.S. senators, Republican Richard Lugar and Democrat Evan Bayh.

Hamilton served as counsel to Bayh when Bayh was governor of Indiana. Hamilton also is a nephew of former Rep. Lee Hamilton, D-Ind., the vice chairman of the 9/11 commission and a key Obama supporter, and brother-in-law of Dawn Johnsen, an Indiana University law professor who's a key Obama nominee at the Justice Department.

Obama's "empathy standard" is "a politically dangerous area," said Wendy Long, counsel to the Judicial Confirmation Network. The group was formed to promote President George W. Bush's nominees and oppose the use of filibusters to block judges.

Long interpreted Obama's stance during the campaign as looking for judges "who would rule based on what their heart and their empathy told them and who would be sympathetic to certain types of litigants." She cited Obama's remarks at a Planned Parenthood conference in 2007, in which he said he wanted nominees who can "recognize what it's like to be a young teenage mom" or had "empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges."

Long said: "That sounds nice, but the problem is when a judge does that he's not following the law. The outcome may very well be in favor or the unwed mother or whoever is claiming the discrimination, but it's not because of the empathy of the judge, it's because of the law."

White House press secretary Robert Gibbs said on Tuesday said that Obama isn't talking about judges disregarding the law but thinks that in rare cases where decisions aren't clear-cut, a judge's background matters.

"The law will lead you to pretty clear conclusions on a vast majority of cases in interpreting either previous law, as well as the Constitution," Gibbs said.

However, Gibbs added there are some cases that "regardless of which label you pick up, whether it's progressive or conservative or moderate, or what have you, that your own empathy and value system leads you to make a conclusion one way or the other."

Long said although the party in power has changed, her group still doesn't support filibusters to block judges. Given the Democratic majority in the Senate, she said, without filibusters Obama is "likely to get almost all of his nominees." However, she added, for Republicans or any senators who have concerns about individual nominees, going on record in voting no can still be "very fruitful and helpful."

Kathryn Kolbert, president of People For the American Way, which opposed many of Bush's nominees, called Hamilton "an ideal choice" who had shown "a deep commitment to the rule of law."

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McClatchy Newspapers 2009

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