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Judge questioned again for nomination

Michael W. Hoskins
January 1, 2009
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 U.S. District Chief Judge David F. Hamilton of Indianapolis appeared before the Senate Judiciary Committee this afternoon for a rare second hearing on his nomination for the 7th Circuit Court of Appeals.

Lawmakers convened the second nomination hearing following complaints from Republican senators in early April about a lack of preparation time for the first hearing, which happened April 1. That hearing was just days before the Senate's two-week break before Easter, and Hamilton answered questions before senators about his 14 years of experience on the federal bench. But some Republicans didn't attend and effectively boycotted the hearing, not necessarily because of any opposition to Judge Hamilton's nomination but to the "unreasonable pace" at which the panel was vetting the nominee.

President Barack Obama nominated Judge Hamilton for the post on March 17, and the first hearing was set about a week later. If he gets approval from committee members, the judge would still need confirmation by the full Senate. If confirmed, he would replace Judge Kenneth Ripple who took senior status in September 2008.

Judge Hamilton joined two other nominees at this latest hearing: Thomas E. Perez for assistant attorney general for the Civil Rights Division of the Department of Justice, and U.S. Judge Andre Davis in the District of Maryland for the 4th Circuit Court of Appeals in Virginia.

"This is his second appearance.... He enjoyed himself so much last time, he decided he would come back," said Sen. Benjamin Cardin, D-Maryland, who chaired the meeting in place of Sen. Pat Leahy, D-Vermont. "I regret that you have to come back."

But because no Republicans attended the first hearing or submitted written questions, this second hearing was necessary, Cardin said.

The judge responded to five questions from senators, ranging from his thoughts on the differences between the two federal judiciary levels, views on courts' reliance on or guidance from foreign law and rulings, and how he'd stand up for what may be unpopular. Only one Republican senator asked him questions in person, despite the party's insistence for the second hearing.

Judge Hamilton said courts might look to foreign scholars or judges for guidance, but that they are bound by U.S. Supreme Court precedent and the U.S. Constitution. That question came from Sen. Tom Coburn, R-Okla., the party's ranking committee member. He also asked the judge about a remark he made during a 2003 speech at a memorial service for the late U.S. Judge S. Hugh Dillon, pertaining to a judge's job of writing footnotes to the Constitution.

Judge Hamilton said that's how his late colleague described the judiciary's work and it was a tribute to his memory.

"The concept of footnotes is not something new, but shows that what we're doing is to work out details about how those principals apply to new situations," he said.

Sen. Edward Kaufman, D-Del., asked what differences the judicial nominees see between the District and Circuit levels. Judge Hamilton responded that he'd miss the trial work and seeing jurors and lawyers on a daily basis, but he'd welcome the chance to handle appellate work.

"I'd look forward to the possibility of engaging in legal issues that are left less to discretion of a particular District judge but apply more to the broader rule of law," the judge said.

Responding to a question from Cardin about work that might be dubbed "unpopular," Judge Hamilton pointed to work he'd done in private practice at Barnes & Thornburg about two decades ago, particularly when the U.S. was dealing with the first wave of the AIDS epidemic.

He led an appeal overturning a parental rights termination ruling by a state court that stripped away the rights of a father who'd tested HIV positive, and the judge also noted his work on the Ryan White case, when the child was told he couldn't attend school after contracting HIV through a blood transfusion. The judge also mentioned some of his rulings that might have been classified as unpopular, but he didn't elaborate on any.

"As a judge, I try not to go out of my way to be unpopular - that's not way we decide cases," he said. "Sometimes the right result is popular; sometimes it's unpopular. You just go with the right result."

After the hearing, the record remains open for a week for additional questions and comments, and the nominees are encouraged to answer promptly. Coburn said he'd be submitting a series of 20 written questions on behalf of Republican colleagues for each nominee to answer, but he didn't elaborate on those questions or why those couldn't have been submitted prior to this hearing for Judge Hamilton to consider.
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