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DAVID HAMILTON Printer Friendly Page
The President's Radical Court Pick
By Vasko Kohlmayer
April 30, 2009

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  • Served as a District Court judge in Indiana during the Clinton administration
  • Struck down a provision requiring that abortion clinics provide women with information about alternatives to abortion 18 hours before the procedure was to take place
  • Ruled that the Indiana State Legislature should not be permitted to open its sessions with Christian prayers
  • Ruled against an amendment requiring convicted sex offenders to provide law-enforcement authorities with personal information
  • Was selected by President Barack Obama to sit on the 7th Circuit Court of Appeals
  • Board member of the Indiana Chapter of the ACLU
  • Former fundraiser for ACORN



Born in 1957 in Bloomington, Indiana, David Hamilton earned a bachelor's degree from Haverford College in 1979 and a J.D. From Yale Law School in 1983. He also did graduate work as a Fulbright Scholar at the University of Tübingen in Germany.

After completing his legal studies, Hamilton clerked for Judge Richard Cudahy of the U.S. Court of Appeals for the Seventh Circuit from 1983-84. He then worked as an associate at the Indianapolis-based law firm of Barnes & Thornburg until 1989; served as legal counsel to Indiana Governor Evan Bayh from 1989-91; and returned to Barnes & Thornburg as a partner from 1991-94. In addition, Hamilton was a member of the Indiana State Recount Commission from 1986-87, and chairman of the Indiana State Ethics Commission from 1991-94.

When President Bill Clinton appointed Hamilton to serve as a judge on the U.S. District Court for the Southern District of Indiana in 1994, the American Bar Association (ABA) rated him as “Not Qualified” for the post. Only 3 of Clinton's 135 judicial nominees received that designation from the ABA, which cited Hamilton's “limited number of years practicing at the bar” and his “lack of trial experience.”

In 2002, Judge Hamilton ruled against a law that the Indiana state legislature had enacted in accordance with precedent set by the 1992 U.S. Supreme Court case Planned Parenthood v. Casey. That law mandated that abortion practitioners, at least 18 hours before performing an abortion, explain to the mother the risks inherent in the procedure, inform her of possible alternatives, and offer her an opportunity to see an ultrasound image of the fetus and listen to its heartbeat. Hamilton claimed that because this “informed consent” law required a woman to make an extra visit to the abortion clinic prior to the undergoing the procedure, it imposed an “undue burden” on her. Over the ensuing seven years, Hamilton continued to issue additional rulings preventing the enforcement of that same law. In 2009 the Seventh Circuit Court, citing Hamilton's longstanding “abuse of discretion” with regard to this matter, struck down the judge's original decision and ruled that waiting periods for abortions were constitutional.

In a 2005 case known as Hinrichs v. Bosma, Hamilton ruled that because “the Establishment Clause [of the First Amendment] was intended in large part to protect religious minorities from religious majorities who might try to harness the power and prestige of the government to advance their sincere religious beliefs,” it was unconstitutional for the Indiana state legislature to begin its sessions with Christian prayers. Explaining that such prayers “amoun[t] in practice to an official endorsement of the Christian religion,” Hamilton determined that those who pray in the Indiana House of Representatives “should refrain” from “sectarian” invocations that “us[e] Christ's name or title [e.g., 'savior'] or any other denominational appeal,” so as to “stay within constitutional bounds.” By contrast, Hamilton maintained that prayers invoking names for God in foreign languages were permissible in most cases.[1]  Hamilton's ruling was later overturned by the Seventh Circuit Court, as was his ruling that forbade a rabbi from displaying a Menorah as part of the Indianapolis Municipal Building’s holiday decor.

In a 2006 case known as United States vs. McCotry, Hamilton invoked the doctrine of “substantive due process”—described by the Heritage Foundation as "the judicial wildcard which activist judges use to insert just about any policy preference [they choose] into the law”—to suppress evidence of a female criminal defendant’s possession of illegal drugs.  Specifically, Hamilton objected to the fact that the search warrant that led to the discovery of those drugs had been issued after the offender's nine-year-old daughter had told her school principal and a social worker about her mother's habitual drug abuse, prompting those authorities to get the police involved in the case.[2]

In another instance, Hamilton disregarded a defendant's prior conviction for a felony drug offense in order to avoid imposing a mandatory sentence of life imprisonment as required by “three-strike” laws. And in a 2007 case, Hamilton requested clemency for a police officer who had engaged in sexual activities with two teenage girls and then pled guilty to two counts of producing child pornography.

In 2008, Hamilton became chief judge of the Southern District of Indiana. That same year, he struck down as unconstitutional a state-law amendment requiring convicted sex offenders and child predators to allow law-enforcement authorities to monitor their Internet use, their email exchanges, and the hard drives of their home computers.[3]

On March 17, 2009, President Barack Obama nominated Hamilton to fill a vacant seat on the U.S. Court of Appeals for the Seventh Circuit. Eight months later, the Senate voted by a 59-39 margin to confirm him.[4]  When Hamilton was asked if he agreed with President Obama's so-called “empathy standard”—which holds that a judge should look beyond the law and the Constitution in order to protect the rights of allegedly oppressed and underprivileged minorities—he replied that empathy "is important in fulfilling that [judicial] oath."

In 2012, Judge Hamilton presided over a case where two Wisconsin high schools wished to hold their graduation ceremonies at a church because it was equipped with air conditioning and good parking facilities. He ruled that such an arrangement violated “the First Amendment’s core value of protecting members of minority faiths and non-believers from persecution and exclusion by religious majorities.” Explaining that "it is too easy for a majority to underestimate the needs and values of minorities," Hamilton said it was important to consider "whether a reasonable observer" would view the arrangement in question as one that "conveys a message of endorsement" of a particular religious faith. To answer this, he speculated: "[W]e should ask ourselves whether members of the religious majority would be comfortable participating in and attending graduation ceremonies in such venues sacred to other faiths. In the absence of evidence of such events, I believe the answer for many would be no." 
 
In addition to his career as an attorney and a jurist, Hamilton also served a stint as a board member of the ACLU's Indiana branch and as a fundraiser for the community organization ACORN. He is the brother-in-law of Dawn Johnsen and a nephew of former U.S. Rep. Lee Hamilton.

NOTE:

[1] Said Hamilton: “If those offering prayers in the Indiana House of Representatives choose to use the Arabic 'Allah,' the Spanish 'Dios,' ... or any other language’s terms in addressing the God who is the focus of the non-sectarian prayers … the court sees little risk that the choice of language would advance a particular religion or disparage others. If and when the prayer practices ... ever seem to be advancing Islam, an appropriate party can bring the problem to the attention of this or another court.”

[2] Said Hamilton: "[T]he question presented here is whether the police may interrogate a young elementary school child at a public school (using a school personnel member as the interrogator) for the sole purpose of a criminal investigation of the child’s parent and not for any purpose relating to child protection, such as in cases of suspected abuse or neglect."

[3] Said Hamilton: “The ability of the individual to retreat into his home and therefore to be free from unreasonable intrusion by the government stands at the very core” of constitutional protections against unreasonable searches.

[4] Only one Republican, Indiana Senator Dick Lugar, voted with the majority, while Democrats unanimously supported Hamilton's nomination. During the confirmation hearings, Republican Senator Jim DeMint (South Carolina) characterized Hamilton as “the definition of an activist judge” who “has used his position on the bench to drive his personal political agenda” and “is clearly not qualified to sit on a court of appeals.”

 

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