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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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  2. I'm glad that attorney Carl Hayes, who represented the BMV in this case, is able to say that his client "is pleased to have resolved the issue". Everyone makes mistakes, even bureaucratic behemoths like Indiana's BMV. So to some extent we need to be forgiving of such mistakes. But when those mistakes are going to cost Indiana taxpayers millions of dollars to rectify (because neither plaintiff's counsel nor Mr. Hayes gave freely of their services, and the BMV, being a state-funded agency, relies on taxpayer dollars to pay these attorneys their fees), the agency doesn't have a right to feel "pleased to have resolved the issue". One is left wondering why the BMV feels so pleased with this resolution? The magnitude of the agency's overcharges might suggest to some that, perhaps, these errors were more than mere oversight. Could this be why the agency is so "pleased" with this resolution? Will Indiana motorists ever be assured that the culture of incompetence (if not worse) that the BMV seems to have fostered is no longer the status quo? Or will even more "overcharges" and lawsuits result? It's fairly obvious who is really "pleased to have resolved the issue", and it's not Indiana's taxpayers who are on the hook for the legal fees generated in these cases.

  3. From the article's fourth paragraph: "Her work underscores the blurry lines in Russia between the government and businesses . . ." Obviously, the author of this piece doesn't pay much attention to the "blurry lines" between government and businesses that exist in the United States. And I'm not talking only about Trump's alleged conflicts of interest. When lobbyists for major industries (pharmaceutical, petroleum, insurance, etc) have greater access to this country's elected representatives than do everyday individuals (i.e., voters), then I would say that the lines between government and business in the United States are just as blurry, if not more so, than in Russia.

  4. For some strange reason this story, like many on this ezine that question the powerful, seems to have been released in two formats. Prior format here: http://www.theindianalawyer.com/nominees-selected-for-us-attorney-in-indiana/PARAMS/article/44263 That observed, I must note that it is quite refreshing that denizens of the great unwashed (like me) can be allowed to openly question powerful elitists at ICE MILLER who are on the public dole like Selby. Kudos to those at this ezine who understand that they cannot be mere lapdogs to the powerful and corrupt, lest freedom bleed out. If you wonder why the Senator resisted Selby, consider reading the comments here for a theory: http://www.theindianalawyer.com/nominees-selected-for-us-attorney-in-indiana/PARAMS/article/44263

  5. Why is it a crisis that people want to protect their rights themselves? The courts have a huge bias against people appearing on their own behalf and these judges and lawyers will face their maker one day and answer for their actions.

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