In the aftermath of his confirmation hearing two weeks ago, Seventh Circuit nominee David Hamilton (whose record I’ve previously outlined here, here, here, and here) has provided answers to written questions submitted by various Republican senators. I highlight here several of his responses:
1. On the Obama “empathy” standard: Hamilton tries to reconcile Obama’s standard with the judicial oath of office (28 U.S.C. § 453: to “administer justice without respect to persons, and to do equal right to the poor and to the rich, and … impartially discharge and perform all the duties” of the office) by stating that a “judge needs to empathize with all parties in the case—plaintiff and defendant, crime victim and accused defendant—so that the judge can better understand how the parties came to be before the court and how legal rules affect those parties and others in similar situations.” (Response to Coburn #1 (emphasis added).)
2. On the “living Constitution”: I’m pleased to see that Hamilton maintains that he rejects the notion that the Constitution is “a ‘living’ document that is constantly evolving.” As he puts it, “the Constitution is a written text that does not evolve other than through the amendment process.” (Response to Grassley #2.iv.)
3. On Supreme Court candidate Diane Wood’s dissent in Hinrichs v. Speaker of the House: The Seventh Circuit majority, reversing Hamilton, ruled that plaintiffs did not have standing as taxpayers to challenge the Indiana House of Representatives’ practice of legislative prayer. Hamilton evidently thinks that the majority got it right and that Wood got it wrong. Unlike Wood, Hamilton has “no disagreement” with the majority’s ruling. Unlike Wood, Hamilton states that the Supreme Court’s “intervening decision” (intervening, that is, between the time of his ruling and the time of the Seventh Circuit’s review) in Hein v. Freedom from Religion Foundation “sharply curtailed reliance on taxpayer standing in Establishment Clause cases.” (Response to Sessions #2.c.)
4. On the Supreme Court’s use of international law in Roper v. Simmons (see This Day for March 1, 2005): I’m pleased to see that Hamilton states that he believes that it was not appropriate for the majority to rely, as it did, on “the overwhelming weight of international opinion against the juvenile death penalty.” (Response to Sessions #9.b.)