Defending Obama's first 7th Circuit nominee... sort of

Judge David Hamilton will be coming to Chicago. Currently the Chief Judge of the Southern District of Indiana, Hamilton was nominated by President Obama to a Seventh Circuit vacancy on St. Patrick's Day -- and it's only yesterday that the Senate voted not to maintain a filibuster against the nomination. Confirmation will almost certainly follow, perhaps as early as today.

I was alerted to this development upon receipt of a scathing email from some conservative outfit that accuses Hamilton of most of the Seven Deadly Sins. I don't know why I get these emails; I didn't sign up for them. But that's a story for a different day.

What caught my attention was an assertion that Hamilton's initial nomination to the District Court, by President Clinton in 1994, was opposed by the American Bar Association. The ABA is anything but a conservative organization and would be expected to fawn over, not oppose, a judicial nominee put forward by a Democratic President. Perhaps, I thought, the conservative emailing group (and, no, I won't name it) got the facts mixed up?

These things do happen... even to liberals.

So I looked. And, what do you know, the ABA did oppose Hamilton's nomination to the District Court. That's a link to the ABA website; the report was still there as of lunchtime today.

But Hamilton was not rejected as some sort of radical ideologue. Rather, according to the ABA, Hamilton had only "limited experience" as an attorney, without the "scope and depth to qualify him for appointment as a federal judge" at the time of his nomination. According to the 1994 ABA statement, the ABA had (and perhaps still has) a 12 year rule; that is, it expects District Court nominees to have at least 12 years' experience at the time of nomination. The idea is that a nominee should "have had an opportunity because of actual trial experience in a number of cases to become very knowledgeable, if not expert, in the functioning of the court room over which he or she would preside. The judicial system, the public, the trial bar and the candidate are not well served by placing on the bench one with only a minimum of experience."

The ABA's real objection? Hamilton had been a lawyer for only about nine years when he was nominated to the District Court. Two and half of those years were spent as counsel to the Governor of Indiana -- which the ABA was reluctant to even count as practicing law. Quoth the ABA, "Mr. Hamilton's experience to date has a very substantial gap, namely the extent of his trial experience.... He has never tried a jury case. He has never tried a criminal case. And in the area of civil law, he reports that he has tried only three civil cases. His legal practice to date, even including his service as Governor's Counsel, do not constitute the kind of distinguished accomplishments in the law that would compensate for the nominee's lack of substantial trial experience." (Emphasis mine.)

Now, understand, the Red-Meat Right doesn't give a feather or a fig about whether Hamilton could comport himself adequately in front of a jury. A lot of them don't understand why juries are important anyway. No, the Red-Meat Right notes that Hamilton, as a District Court Judge, invalidated an Indiana law that would have imposed a waiting period for an abortion. This ruling was overturned by the court that Hamilton will soon join. Hamilton also ordered the Indiana legislature to use nondenominational prayers when opening its sessions. I don't know what became of this ruling or even if it was appealed. Having served as a judge for 15 years, he's made his share of rulings in criminal cases, too, and some these -- surprise, surprise! -- are also controversial. Some have been reversed. (Again -- no surprise. A judge who's afraid to be reversed shouldn't be on the bench in the first place.)

You or I may have reached different results than Hamilton in some of the controversial cases, if we were honestly trying to follow the law in all its tangled precedential majesty. And, almost certainly, Judge Hamilton's on-the-job experience has made up, at least in some sense, for much of what he could and should have learned in the practice -- certainly, he's learned a lot about federal law and procedure working with it on a daily basis. I thought the warm remarks in favor of Hamilton's current nomination by Indiana's Republican Senator Lugar were reassuring. My bottom line is that I think it is wrong and unfair to condemn a nominee just because he's been nominated by this President -- as opposed to that one. And that, I think, is the real nub of the Red Meat Right's opposition.

So I defend Judge Hamilton's nomination and hope he'll do a good job.

But, as the title of this essay indicates, I, too, have reservations.

I'm not thrilled with on-the-job training. In much of Europe, as I understand it, judging and lawyering are seen as separate professions. Here, though, judges are supposed to come from the ranks of lawyers (thus the ABA's experience requirements). In theory, upon ascending to the bench, an experienced lawyer will be more sympathetic to the stresses and strains of his or her ex-colleagues. A career jurist doesn't really understand what lawyers go through.

But our Judge Hamilton is the nephew of former Indiana Congressman Lee Hamilton. Judge Hamilton may live in Indiana -- but, according to Wikipedia, Hamilton is another Yale Law graduate. After graduate work as a Fulbright Scholar, Hamilton began his legal career as a clerk to another 7th Circuit judge. Before joining the Indiana governor's office, Hamilton was an associate in the largest law firm in Indianapolis.

You know, one of the reasons we Americans rebelled against the English was their annoying tendency to put a fuzzy-cheeked youth in charge of the colony or the regiment or something else important simply because his father or uncle was a duke or earl or marquess or something. Not all of these were necessarily abominations; some of them served ably -- it's the idea that someone can be born to high position that sticks in the American craw. In Hamilton we have yet another career jurist, plucked from the upper class. He's never really practiced law -- he's never worried about making payroll, never had to decide whether to pay his insurance or the mortgage, or the mortgage or the office rent. He's never agonized about trying to call a client to collect a bill; he's been cushioned and pampered by support staff for his entire professional career. How sympathetic will he be to the plight of a solo practitioner whose printer goes on the fritz or whose computer fries the night before a brief is due? I'm not saying we can't have Ivy Leaguers sit on the bench... but do they all have to be?

Mr. President, how about some real judicial diversity?