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Senators treat judge kindly at second hearing

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Even though Republicans insisted on a rare second judicial nomination hearing for U.S. District Judge David F. Hamilton, it remained unclear Wednesday what need there was for the Indianapolis judge to appear again before the Senate Judiciary Committee in his bid for the 7th Circuit Court of Appeals.

He attended his second nomination hearing in the afternoon, a proceeding that was scheduled after Republican senators had complained in early April that they needed more time to review Judge Hamilton's extensive record on the bench and that he should appear a second time. This hearing was scheduled following a two-week spring break and follows the first hearing April 1, which Republicans effectively boycotted.

Only one Republican lawmaker attended the hearing this week, and that senator lobbed two relatively mild questions to the judge, illustrating that partisan politics may have been more at the heart of the delay than anything else.

Lawmakers were apologetic to the judge for the month's delay in the process but kept a sense of humor about it during the hearing.

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

Because no Republicans attended the first hearing or submitted written questions, this second hearing was necessary, Cardin said. But Oklahoma Sen. Tom Coburn, the ranking minority member, was the only Republican to attend to ask questions. The two senators who'd previously requested more time - Arlen Specter who was a Republican but recently switched to the Democratic Party, and Jon Kyl, R-Ariz. - did not attend.

President Barack Obama nominated Judge Hamilton for the post 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.

Overall, Judge Hamilton answered five questions from both Democrat and Republican lawmakers at the second hearing. Some were directed at all the nominees.

Coburn asked the judge about his view on using international law or foreign court rulings as guidance, as well as a 2003 comment the judge made about judges writing footnotes to the Constitution.

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. The judge noted that his footnotes remark came during a 2003 speech 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.

Coburn thanked Hamilton for attending and added that his uncle, former Congressman Lee Hamilton, was one of his heroes.

Sen. Edward Kaufman, D-Del., asked what differences the judicial nominees see between the District and Circuit levels. Judge Hamilton said 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 he 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'd 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 case of Ryan White, who 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."

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.

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 submit 20 questions written 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.

No date has been set for the committee to vote on Judge Hamilton's nomination.

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  1. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

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