Obama selects a moderate for appeals court

March 17, 2009
Moderate Is Said to Be Pick for Court
By NEIL A. LEWIS

WASHINGTON — President Obama is expected to name his first candidate to an appeals court seat this week, officials said, choosing David F. Hamilton, a highly regarded federal trial court judge from Indiana, for the appeals court in Chicago.

Judge Hamilton, who is said by lawyers to represent some of his state’s traditionally moderate strain, served as counsel to Senator Evan Bayh when Mr. Bayh was the state’s governor; he is also a nephew of former Representative Lee H. Hamilton of Indiana.

A senior administration official said Judge Hamilton would have the support of both Mr. Bayh, a Democrat, and the state’s other senator, Richard G. Lugar, a Republican. He will be nominated for a seat on the United States Court of Appeals for the Seventh Circuit, based in Chicago.

The administration official said part of the reason for making the Hamilton nomination the administration’s first public entry into the often contentious field of judicial selection was to serve “as a kind of signal” about the kind of nominees Mr. Obama will select. The official spoke on the condition of anonymity because the nomination had not been officially made.

The White House is planning to announce a handful of other candidates over the next few weeks to fill some of the 17 vacancies on the appeals courts, which are just below the level of the Supreme Court. On most of the 12 regional appeals courts, including on the Seventh Circuit for which Judge Hamilton has been nominated, a majority of the sitting judges were appointed by Republican presidents.

Mr. Obama’s selections will be closely watched to see what role he tries to play in shaping the ideology of the federal courts, which have influence over some of the nation’s most intensely felt social issues. The administration official said the White House was hoping to reduce the partisan contentiousness of judicial confirmation battles of recent years.

“We would like to put the history of the confirmation wars behind us,” the official said.

Judge Hamilton was named to the bench by President Bill Clinton in 1994. As a trial judge largely bound to the rulings of higher courts, he has had few opportunities to demonstrate any ideological leanings.

He did receive attention for two rulings striking down actions of conservatives in the Indiana legislature. In 2005, he made news by ruling that the legislature was prohibited from beginning its sessions with overtly Christian prayers.

The decision drew widespread criticism in the legislature and across the state. On appeal, a panel of the Seventh Circuit dismissed the ruling, saying the people in whose name the American Civil Liberties Union had brought the suit lacked standing because they had not been harmed by the prayers.

In 2008, Judge Hamilton struck down as unconstitutional an amendment to the state law requiring convicted sex offenders to provide the authorities with personal information, including any e-mail addresses or user names. The amendment would also have required the offenders to agree to allow their home computers to be searched at any time and to pay for a program to allow monitoring of their Internet use.

The judge said the amendment cut into the heart of a person’s right to privacy in his home.

“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, he said.

Judge Hamilton graduated from Yale Law School before serving as a law clerk to Judge Richard D. Cudahy of the Seventh Circuit, who is generally viewed as a liberal jurist.

By naming judges one at a time, Mr. Obama is taking a markedly different approach from former President George W. Bush, who held a ceremony on May 9, 2001, in the Rose Garden to present his first 11 choices for appeals court seats. The ceremony provided a political air to the nominations, most of which went to prominent conservatives.

The Obama administration has also restored the longstanding role of the American Bar Association in reviewing nominees before they are publicly announced. Mr. Bush reduced the group’s role after it earned the enmity of conservatives for its negative reviews of two Republican nominees for the Supreme Court.