Hamilton judicial appointment goes to Senate

By A. James Memmott

November 18, 2009 at 11:41am

After months of debate and division, the U.S. Senate is primed to confirm David F. Hamilton of Indiana for a seat on a federal appeals court.

The Senate voted 70-29 Tuesday to put an end to deliberations on Hamilton, who was nominated for the post by President Barack Obama. Ten Republicans voted with the Democratic majority.

This prevented a filibuster by conservatives against the nomination.

The Senate is expected to vote Thursday on the nomination, which can be confirmed with a simple majority.

Thus will end a process that began quietly but took on some of the elements of this summer’s debate over Obama’s nomination of Sonia Sotomayor to the Supreme Court.

Democrats saw a judge who in their opinion was moderate; some Republicans judged the same person to be a liberal activist.

A graduate of Yale Law School, Hamilton spent a few years in private practice and then served as counsel to then-Gov. Evan Bayh of Indiana from 1989 to 1991.

In 1994, he became a judge on the U.S. District Court for Southern Indiana, having been nominated to that post by President Bill Clinton. In 2008, he became chief judge of the district court.

In March of this year, President Barack Obama chose Hamilton as his first judicial nominee, picking him for a vacancy on the U.S. Court of Appeals for the Seventh Circuit. Based in Chicago, the court hears cases from Wisconsin, Illinois and Indiana.

The nomination of Hamilton, a nephew of former Democratic Rep. Lee H. Hamilton of Indiana, did not seem to pose great difficulties at first.

Hamilton had the support of Indiana’s two senators. Republican Richard Lugar hailed the pick, as did Bayh, who was elected to the Senate in 1998.

In reporting on the nomination, The New York Times wrote that Hamilton was said by lawyers “to represent some of his state’s traditionally moderate strain.”

The newspaper suggested that by choosing from the center, the Obama administration hoped to depoliticize judicial nominations.

“We would like to put the history of the confirmation wars behind us,” an unnamed official told the paper.

The Senate Judiciary Committee approved Hamilton by a 12-7 vote along party lines in June.

But during the summer, conservatives became more vocal in their opposition to Hamilton, characterizing some of his rulings as “radical.”

One of his decisions that drew fire was a ruling in 2005 striking down the use of overtly Christian prayers at the beginning of sessions of the Indiana legislature.

Hamilton later clarified his ruling to note that any prayers that advanced any religion, not just Christianity, would be unconstitutional. The Seventh District court of appeals reversed his decision on technical grounds.

In another controversial case, Hamilton struck down an Indiana law that required women seeking an abortion to have in-person counseling. That ruling, too, was reversed on appeal.

Some conservatives also labeled Hamilton as an “ACORN activist.” However, his involvement with the advocacy group seems to have been limited to a month or two of canvassing after graduation from Haverford College in 1979.

Conservatives also described Hamilton as an “ACLU liberal,” a reference to his serving from 1987 to 1988 as a board member and vice president of litigation for the Indiana Civil Liberties Union.

Hamilton’s backers countered with the fact that he received the American Bar Association’s highest rating.

In addition, he had the backing of Geoffrey Slaughter, a lawyer and the president of the Indianapolis chapter of the Federalist Society, a conservative and libertarian group.

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