President Obama has made a number of controversial appointments during his first 100 days in office, but perhaps none more so than activist judge and ACLU alumnus David Hamilton. In a nomination that may be voted on as early as this week, the president has chosen Hamilton to sit on the 7th Circuit Court of Appeals, an important Chicago-based bench whose jurisdiction extends over Illinois, Indiana, and Wisconsin. The appointment serves as an early warning that Obama’s judicial nominees, presented as “moderates,” will be anything but.
Born in 1957, Hamilton began his judicial career when he was nominated by President Bill Clinton for a District Court in Indiana. It was a controversial choice: Hamilton had no previous judicial experience and the American Bar Association rated him as “not qualified.” Nevertheless, a compliant US Senate approved the selection and Hamilton took his position in October 1994.
During his tenure as a federal judge, Hamilton issued a number of disturbing rulings. In November 2005, for example, he ruled that the Indiana State Legislature should not be permitted to open its sessions with Christian prayers. Hamilton wrote that such prayers violate the First Amendment and ordered that all invocations offered in that body should “refrain from using Christ’s name or title.” Hamilton argued that using such terms would amount to promoting the Christian religion and thus run afoul of the First Amendment: "All are free to pray as they wish in their own houses of worship or in other settings. Those who wish to participate in a practice of official prayer must be willing to stay within constitutional bounds.”
But while Hamilton judged the use of Christ’s name to be unlawfully “sectarian,” he Hamilton saw no problem if a Muslim cleric should choose to invoke the name of “Allah.” Hamilton offered this tortured reasoning to justify this conclusion:
The Arabic word “Allah” is used for “God” in Arabic translations of Jewish and Christian scriptures. If those offering prayers in the Indiana House of Representatives choose to use the Arabic Allah, the Spanish Dios, the German Gott, the French Dieu, the Swedish Gud, the Greek Theos, the Hebrew Elohim, the Italian Dio, or any other language’s terms in addressing the God...[T]he court sees little risk that the choice of language would advance a particular religion or disparage others.
Thus, if Hamilton had his way, it would be perfectly legal to invoke “Allah,” but it would be a violation of the Constitution to use the name of Christ in the Indiana General Assembly. Not everyone agreed with this preferential conclusion. Indeed, the 7th Circuit Court of Appeals – the very court for which Hamilton now stands nominated – overturned his decision.
The 2005 case was not Hamilton’s first contentious ruling. In 2003, Hamilton struck down an abortion-related provision known as the “informed-consent law.” The law required that abortion clinics simply provide women with information about alternatives to abortion 18 hours before the procedure was to take place. That went too far for Hamilton, who ruled the law unconstitutional – even though the Supreme Court had earlier upheld a materially identical law in a different case (the Casey decision). The 7th Circuit court once again overturned Hamilton and issued a strongly-worded rebuke, noting that no other judge in America had gone to such an extreme: “No court anywhere in the country has held any similar law invalid...”
Last year, David Hamilton ruled that an amendment to an Indiana state law that required convinced sex offenders to provide the authorities with personal information such as e-email addresses or online user names was unconstitutional. Hamilton based his conclusion on the argument that “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.” In his reasoning, Hamilton seemed to have overlooked the fact that the person in question was not just any individual but a convicted sex offender, and that, depending on the nature of their crime, it may be appropriate for sex offenders to forfeit some measure of privacy.
Until now, the 7th Circuit Court of Appeals has overturned most of Hamilton’s more extreme rulings. The fact that the vast majority of cases before that court never make it further means that the court stands as the final authority on many important cases. But now, President Obama and his advisers have figured out how to circumvent this inconvenience. They will simply appoint Hamilton to the very court that served to keep him in check. Thus, with Hamilton’s ascension to the bench, we could see a dramatic shift toward left-wing judicial activism in an important part of America’s heartland.
Not that one could perceive this from the statement the president issued when announcing his nomination. “Judge Hamilton has a long and impressive record of service and a history of handing down fair and judicious decisions,” President Obama declared, adding that Hamilton would be a “thoughtful and distinguished addition” to the 7th Circuit.
As if on cue, the New York Times ran a prominently placed story describing Hamilton as “a highly regarded federal trial judge” and presenting him as a restrained jurist who represents “some of his state’s traditionally moderate strain.” Apart from the awkwardness of that description – how exactly does one represent only “some” of a “strain”? – it was belied by Hamilton’s far-from-moderate judicial record.
That Hamilton is no moderate is further evidenced by his professional associations. For example, he is a board member of the Indiana Chapter of the ACLU and a fundraiser for the Association of Community Organizations for Reform (ACORN). In light of this, it should come as no surprise that the nomination of this “moderate” has generated a wave of enthusiasm among various leftist groups. People for the American Way, the far-Left organization headed by Norman Lear, called Hamilton “an ideal choice” for the 7th Circuit Seat.
The most disturbing aspect of Hamilton’s nomination is what it suggests about the nature of judicial appointees under the Obama administration. The New York Times quoted one senior administration official as saying that the Hamilton pick is “a kind of signal” about the kind of nominees President Obama will choose. If true, it is the clearest indication yet that the president intends to reshape America’s judiciary in a radical way. David Hamilton may be just the beginning.