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.