In a November 11 editorial, Investor's Business Daily claimed that Judge David Hamilton, nominee for the 7th Circuit Court of Appeals, is a “radical” judge. In addition to invoking Hamilton's views on “empathy” -- a favorite conservative attack -- the editorial misleadingly suggested that Hamilton discriminated against Christianity by banning the word “Jesus” from state legislature prayer, but allowing the word “Allah,” and suggested that Hamilton is not qualified by citing his 1994 rating by the American Bar Association while ignoring Hamilton's current ABA rating of “well qualified.”
IBD: In 1994, Hamilton “was rated as 'not qualified' by the ABA”
From the IBD editorial:
Hamilton, who was nominated to the district court bench by President Clinton even though he had no judicial experience and was rated as “not qualified” by the ABA, has a history of overturned rulings and admonishments by colleagues and superiors about exceeding his authority.
However, ABA now rates Hamilton “Unanimously Well Qualified”
ABA gave Hamilton highest rating. An ABA document listing the “Ratings of Article III Judicial Nominees” for the 111th Congress states that Hamilton was found to be “Well Qualified,” the highest possible rating. The Senate Judiciary Committee also lists Hamilton's ABA rating as “Unanimously Well Qualified.”
Hamilton's 1994 ABA rating based on “his limited number of years practicing at the bar and his lack of trial experience.” After Hamilton was nominated in 1994 to serve on the US District Court for the Southern District of Indiana, the ABA stated that “a majority of our Committee was of the view that Mr. Hamilton is 'Not Qualified' for the appointment,” citing “his limited number of years practicing at the bar and his lack of trial experience.” The ABA noted that "[o]rdinarily a prospective nominee to the federal bench should have been admitted to the bar for at least 12 years" and that Hamilton “had been a member of the bar for less than 9 years.” Hamilton was confirmed and has served on the District Court since October 1994.
IBD forwarded claim that Hamilton ruled to prevent prayers that mentioned Jesus but “allowed prayers which mentioned Allah”
From the IBD editorial:
As Sen. Jeff Sessions, R-Ala., has pointed out in a letter to colleagues, Hamilton also has a problem with any expression of religion in the public square - however innocuous - but not with all religion.
Hamilton's ruling in the 2005 case, Hinrichs v. Bosma, “prohibited prayers in the Indiana House of Representatives that expressly mentioned Jesus Christ ... yet he allowed prayers which mentioned Allah,” Sessions also noted. We wonder if Hamilton has a problem with “God save the United States and this Honorable Court,” being uttered as the U.S. Supreme Court enters the courtroom to hear arguments.
In fact, Hamilton's decision did not favor Islam over Christianity -- it simply banned “sectarian” prayer
Hamilton struck down “sectarian” prayer in Indiana legislature -- not just the words “Jesus Christ.” Using Supreme Court precedent (Marsh v. Chambers), Hamilton ruled in Anthony Hinrichs, et al. v. Brian Bosma that prayer in the Indiana House of Representatives “should refrain from using Christ's name or title or any other denominational appeal” and that such prayer “must be nonsectarian and must not be used to proselytize or advance any one faith or belief or to disparage any other faith or belief.” Hamilton wrote that the “sectarian content of the substantial majority of official prayers in the Indiana House therefore takes the prayers outside the safe harbor the Supreme Court recognized for inclusive, non-sectarian legislative prayers in Marsh v. Chambers, 463 U.S. 783 (1983).”
Post-judgment motion clarified that prayers may include all “non-sectarian” references to God. In a post-judgment motion, Hamilton wrote that "[t]he Arabic word 'Allah' is used for 'God' in Arabic translations of Jewish and Christian scriptures" and that "[i]f 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 who is the focus of the non-sectarian prayers contemplated in Marsh v. Chambers, the court sees little risk that the choice of language would advance a particular religion or disparage others." He continued: “If and when the prayer practices in the Indiana House of Representatives ever seem to be advancing Islam, an appropriate party can bring the problem to the attention of this or another court.”
IBD: Hamilton “seeks to impose the 'empathy' standard on the courts.”
From the IBD editorial:
Yet another judicial nominee seeks to impose the “empathy” standard on the courts. He thinks judges should base rulings on a plaintiff's status, legislate from the bench and amend the Constitution.
Indiana federal judge David Hamilton stands poised to be confirmed by the U.S. Senate to assume a seat on the 7th Circuit Court of Appeals serving Illinois, Indiana and Wisconsin. He's a former fundraiser for Acorn and a former leader of the Indiana chapter of the American Civil Liberties Union.
He is also another in a series of activist judges who believe the U.S. Constitution is not etched in stone but made of clay, ready to be molded into anything they want. He shares the beliefs of Supreme Court Justice Sonia Sotomayor and Edward Chen, nominee for the Northern District of California, that laws can be made from the bench and that empathy, not original intent, should be a judge's guide.
“Part of our job here as judges is to write a series of footnotes to the Constitution,” Hamilton says. “We all do that every year in cases large and small.”
And that's precisely the problem. The law should be applied equally and evenly irrespective of who the plaintiffs or defendants might be. Otherwise, equal protection under the law goes out the window.
In testimony before the Senate Judiciary Committee, Hamilton said that “empathy” was “important” in fulfilling a judge's role. “Empathy is the ability to understand the world from another person's point of view,” he said.
But the only “point of view” a federal judge needs to understand is that of the Founding Fathers.
According to Hamilton, “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.”
And here we thought justice should be blind and not wear its heart on its judicial robes.
But Hamilton's comments about “empathy” echo similar comments celebrated by conservatives
Hamilton: “Empathy is the ability to understand the world from another person's point of view.” In his October 30 letter opposing Hamilton, Sen. Jeff Sessions (R-AL) wrote that "[i]n a response to a follow-up question after his hearing, Judge Hamilton stated: 'Federal judges take an oath to administer justice without respect to persons, and to do equal right to the poor and to the rich. Empathy -- to be distinguished from sympathy -- is important in fulfilling that oath. Empathy is the ability to understand the world from another person's point of view. 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.' "
Conservatives have also cited empathy as an important quality in a judge. Undermining IBD's suggestion that Hamilton is “radical” since he has said “empathy” is important, numerous conservatives have previously cited empathy and personal experience as important qualities in a judge -- including Supreme Court Justice Samuel Alito. Other conservatives including Justice Clarence Thomas, President George H.W. Bush, and Bush administration lawyer John Yoo have also cited personal experience or empathy as an important quality in a judge.