Overruled


Initial Thoughts on Judge Hamilton
March 17, 2009, 6:05 pm
Filed under: Ian | Tags: ,

hamilton_davidI’ll have a lot more to say about the impending nomination of Judge David Hamilton to the Seventh Circuit soon—who I am increasingly impressed with.   Setting aside my feelings about Judge Hamilton, however, my initial impression is that this nomination reflects very, very well on President Obama.

Despite the huge amount of public attention paid to abortion cases, the overwhelming majority of federal judges will go their entire careers without ever ruling on an abortion decision.  Constitutional challenges to abortion restrictions are relatively rare, at least compared to the thousands of routine criminal, civil rights, immigration and other matters that make of the federal docket.  For that reason, presidents who want to promote a sitting judge to a higher court have a number of options to choose from, and most of those options will not have previously taken a public position on the single most contentious issue facing the judiciary: abortion.  Federal judges who dream of a promotion generally hate to be assigned an abortion case, because it forces them to say something on record about the topic.  Similarly many presidents, including in some instances Bill Clinton, historically passed over candidates that have expressed any viewpoint whatsoever on abortion.  Why deal with the hastle of trying to get them confirmed when a “stealth” candidate is waiting in the wings?

Judge Hamilton, however, decided a case called A Woman’s Choice-East Side Women’s Clinic v. Newman, which struck down Indiana’s so-called “Women Are Stupid” law requiring women seeking abortions to travel in person to a clinic, listen to a spiel about alternatives to abortions, wait 18 hours, then go back to the clinic for the procedure.  His opinion is well-reasoned, persuasive, and—as I will explain in a later post—correct under then-applicable precedents.  The correctness of Judge Hamilton’s decision notwithstanding, anti-choice groups have responded to his nomination with predictable whines.

Indeed, these whines, and the organized right-wing opposition they will bring are so predictable, President Obama could have easily said “I’ve got enough on my plate right now,” and given Judge Hamilton a pass.  He didn’t.  President Obama felt that Judge Hamilton—a man that multiple sources have told me is absolutely brilliant—was the best man for the job, and so he’s willing to fight a little harder to make sure that he is confirmed.  Because Judge Hamilton’s was only a district judge when he decided A Woman’s Choice, he was bound by the then-existing precedents that led to its outcome, so it is entirely possible that Judge Hamilton would cast anti-choice votes if promoted to a higher court.  Nevertheless, his single decision striking down an abortion law ensures that the anti-choice right will be out in force to oppose Hamilton’s nomination.

President Obama could have avoided that trouble, but he chose to confront it head-on.  This is a very good sign of things to come.

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