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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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  1. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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