Bench Memos

Seventh Circuit Candidate David Hamilton—An ACLU “Moderate”!

In an article headlined “Moderate Is Said to Be Pick for Court,” the New York Times reports that President Obama’s first nominee to a federal appellate court seat is expected to be David F. Hamilton.  Hamilton, appointed by President Clinton to a district judgeship in Indiana in 1994 (despite the ABA’s “not qualified” rating), is expected to be named to the Seventh Circuit.

It’s far from clear what justifies the article’s characterization of Hamilton as a “moderate” (or, as the article oddly puts it, as “represent[ing] some of his state’s traditionally moderate strain”—how does one represent some of a strain?).  Was it perhaps Hamilton’s service as vice president for litigation, and as a board member, of the Indiana branch of the ACLU?  Or maybe Hamilton’s extraordinary seven-year-long series of rulings obstructing Indiana’s implementation of its law providing for informed consent on abortion?  That obstruction elicited this strong statement (emphasis added) from the Seventh Circuit panel majority that overturned Hamilton:

For seven years Indiana has been prevented from enforcing a statute materially identical to a law held valid by the Supreme Court in Casey, by this court in Karlin, and by the fifth circuit in Barnes. No court anywhere in the country (other than one district judge in Indiana [i.e., Hamilton]) has held any similar law invalid in the years since Casey. Although Salerno does not foreclose all pre-enforcement challenges to abortion laws, it is an abuse of discretion for a district judge to issue a pre-enforcement injunction while the effects of the law (and reasons for those effects) are open to debate.

Or perhaps Hamilton’s inventive invocation of substantive due process to suppress evidence of a criminal defendant’s possession of cocaine marijuana,* a ruling that, alas, was unanimously reversed by the Seventh Circuit?

With “moderates” like Hamilton, imagine what Obama’s “liberal” nominees will look like.

* 3/18 update:  Thanks to blogger “Marge” at People for the American Way for noting my minor factual error.  Why Marge imagines that this error affects my broader point escapes me. Insofar as Marge thinks that the distinction between marijuana and cocaine somehow affects the legal question, I’ll note that according to the Seventh Circuit’s opinion reversing Hamilton, the particular defendant in fact was charged with possession of marijuana and with “managing or controlling a place and knowingly making the place available for the storage or use of a controlled substance.”  Given that the defendant’s boyfriend stored both marijuana and crack cocaine in their apartment, this second charge may certainly be cocaine-related.

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