Commentary: Confirming Judge Hamilton for the Seventh Circuit

Special to McClatchy NewspapersNovember 16, 2009 

When Barack Obama became President in January, the United States Courts of Appeals experienced openings in fourteen of their 179 judgeships. The new administration realized that swiftly filling these openings was critical and applied specific measures to facilitate appointments, vowing to end the "confirmation wars" that have plagued selection.

Thus, President Obama exercised special care to insure that his first nominee, U.S. District Judge David Hamilton of Indiana, was extremely qualified. Despite these efforts, numerous Senate Republicans have opposed Judge Hamilton.

Because the jurist is intelligent, ethical, diligent and independent and has balanced temperament the Senate must confirm Judge Hamilton on Tuesday, as this date is the eight-month anniversary of his nomination.

The Seventh Circuit, which resolves 99 percent of appeals from Indiana, Illinois and Wisconsin, requires all eleven of its authorized judgeships to promptly, inexpensively and fairly resolve cases. For instance, the tribunal now provides the largest percentages of oral arguments and published opinions, which are crucial measures of appellate justice, but are very resource intensive.

Obama has invoked a few practices to swiftly fill the Seventh Circuit vacancy left by Judge Kenneth Ripple's assumption of senior status.

The Chief Executive promptly consulted the home-state senators before making an official nomination. Obama sought the advice of Evan Bayh (D) and Richard Lugar (R), who strongly backed Judge Hamilton. Obama nominated the jurist on March 17, while he received an April 1 hearing.

When Republicans asserted that rapid scheduling left them insufficient preparation time, Senator Patrick Leahy (D-Vt.), the Judiciary Committee chair, quickly arranged a second hearing for April 29. The Judiciary Committee approved Hamilton 12-7 on June 4. Senator Harry Reid (D-Nev.), the Majority Leader, scheduled the jurist's floor debate and vote for Tuesday by filing a cloture motion nearly a half year after the panel had approved him.

The White House chose Judge Hamilton as the initial nominee because he had compiled an excellent record as a U.S. District Judge. The ABA assigned the jurist its highest rating, well qualified. The President of the Indianapolis chapter of the Federalist Society praised the nomination: "I regard Judge Hamilton as an excellent jurist with a first rate intellect."

Nonetheless, Republicans strongly criticized Judge Hamilton.

For instance, Senator Jeff Sessions (R-Ala.), the ranking Judiciary Committee member, claimed that "President Obama chose to set an aggressive tone by nominating Judge David Hamilton, a former board member and vice president for litigation of the Indiana chapter of the ACLU, as his first nominee."

Moreover, Sessions, observed his "nomination is clearly controversial," contending that Hamilton has "drive[n] a political agenda," embracing the "empathy standard [and] the idea of a living Constitution." Representation of, or membership in, groups, such as the ACLU and the Federalist Society, or issuance of some opinions with which senators disagree should not be automatic disqualifiers for selection or confirmation.

Judge Hamilton's distinguished record of service on the federal bench means that the Senate should confirm him today. Filling Judge Ripple's seat is important because the Seventh Circuit needs all of its members to deliver appellate justice.

ABOUT THE WRITER

Carl Tobias is the Williams Professor at the University of Richmond School of Law.

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