Editore"s Note
Tilting at Windmills

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March 17, 2009

STEERING CLEAR OF JUDICIAL FIGHTS.... President Obama will reportledy announce his first appeals court nominee this week, introducing District Court Judge David Hamilton of Indiana as his pick for the 7th Circuit. Hamilton is a respected jurist, universally described as a judicial "moderate," and he will enjoy the enthusiastic backing of Indiana's Democratic and Republican senators.

Hamilton's confirmation is, at this point, practically a foregone conclusion. Apparently, that's largely the point.

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.

Hamilton is a fine pick, and absolutely deserves the nomination. I have every confidence that the 7th Circuit will be better off with his service.

For that matter, I can also appreciate the White House's desire to get this process started on an uncontroversial note. Instead of picking a fight over a judge who would draw partisan ire, Obama wants the first nomination to go smoothly, and hopefully create some momentum for the coming years. Makes sense.

But I hope the president and his team, anxious to end "the confirmation wars" and "partisan contentiousness," don't shy away from even more progressive nominees just to avoid Republican outrage. Republican appointees enjoy the majority in most appeals courts, which are extremely important given that the Supreme Court only hears one out of every 10 cases that reach the building.

In Clinton's second term, Senate Republicans slow-walked as many of the president's judicial nominees as possible, waiting for the clock to run out on his presidency, and creating a vacacny "crisis" in the process. George W. Bush picked as many conservative ideologues as he could for the judiciary -- he reveled in the "partisan contentiousness" -- and GOP lawmakers helped him quickly move the courts significantly to the right.

Obama has an opportunity to bring some necessarily balance to the judiciary, made all the more real with a sizable Democratic majority in the Senate. The administration shouldn't let the fear of minority-party whining discourage it from adding some strong, progressive voices to the bench.

Steve Benen 10:35 AM Permalink | Trackbacks | Comments (19)

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Comments

But he won't. He'll cave to the Blue Dogs and GOP and we'll get the shaft again.

Posted by: robertdsc on March 17, 2009 at 10:43 AM | PERMALINK

partisan schmartisan.

Is Obama a Democrat or isn't he?

Posted by: Duncan Kinder on March 17, 2009 at 10:46 AM | PERMALINK

I know very little about Hamilton, other than that he was originally appointed to the federal bench by Billy Bob Clinton.

Therefore, it is safe to assume that Hamilton is corporately owned - as Billy Bob never appointed anything else.

I want to see Obama show that he is not corporately owned. One way will be to appoint actual progressives to the federal bench who will stand up for working people - something seldom actually done by Billy Bob.

A limited google search shows some reasons that the reich-wing will oppose Hamilton. 'In 2005, he made news by ruling that the legislature was prohibited from beginning its sessions with overtly Christian prayers.' Although I suspect that the Taliban Wing of the Rethug party does not need any reasons to oppose anyone Obama appoints, I am sure that this will do for starters.

Posted by: SadOldVet on March 17, 2009 at 10:48 AM | PERMALINK

This is a stupid argument. What most people want is a judge that is going to do their damn job and protect the constitution. I personally don't want activist judges either way. The suggestion seems to be lets put up some judges that are going to start a fight just for the sake of starting a fight. I am much more concerned with putting up judges who know what they hell they are doing and won't be putting their personal biases whether progressive or conservative into any decisions. That we are now advocating this kinda shit is the height of hypocrisy because nobody wants Republicans nominating conservative idealogues as judges. This seems to be setting up dissappoint for no other reason than to hold President Obama to a standard that is patently ridiculous. If a judge knows what they are doing and happen to be progressive then thats great but I put a much higher premium on their ability to do their job than their political leanings.

Posted by: sgwhiteinfla on March 17, 2009 at 10:50 AM | PERMALINK

Its not about the Blue Dogs, Obama's other name is Bush44, and he will continue to support those who militaristic, pro upper-upper-class and anti-Constitution in all but abortion, and possibly not even that.

Posted by: m on March 17, 2009 at 10:51 AM | PERMALINK

Wow two posts from two diametrically opposed sources. One source-reason, enlightenment, and common sense(sgwhiteinfla).Second source-not based in facts,total nonsense, radical opinion(m).

Posted by: Gandalf on March 17, 2009 at 11:00 AM | PERMALINK

"The administration shouldn't let the fear of minority-party whining discourage it from adding some strong, progressive voices to the bench."

Hear, hear! "Moderate" is in the eye of the beholder, and I suspect too many moderates (from our perspective) would be viewed from the far right as so-called activists.

We've learned already that Republicans are going to do what they do (whine) no matter what. We need to do what we do (appoint competent judges) while putting anyone who opposes such nominees on defense. In short, we must stay on offense.

Posted by: CJ on March 17, 2009 at 11:02 AM | PERMALINK

The suggestion seems to be lets put up some judges that are going to start a fight just for the sake of starting a fight.

That doesn't "seem to be" the suggestion at all. Judges aren't robots, and if constitutional law was just a matter of sticking the facts into a machine and having ConstitutionBot2000 spit out the appropriate decision, we wouldn't need federal judges anymore.
The constitution was written by humans and is interpreted by humans who have different opinions and methods of interpretation.

Posted by: Allan Snyder on March 17, 2009 at 11:07 AM | PERMALINK

"Republican appointees enjoy the majority in most appeals courts, which are extremely important given that the Supreme Court only hears one out of every 10 cases that reach the building."

I thought it was more along the lines of one percent, but even this understates the importance of the lower courts as, while I can't cite a statistic offhand, I suspect that well under half the cases that go to the circuit court end up filing cert petitions (and many, many more get filed in district court but never appealed). That said, don't assume that "Republican appointee" equates with "political/judicial conservative." There are a fair number of Souters out there. I clerked for a Reagan appointee who is not by any means sympathetic to the Republican agenda.

sgwhiteinfla-- I think the problem in your argument lies in your assumption that there is a bright-line distinction between "judicial activism" and "protecting the Constitution," and that a judge's personal philosophy can be segregated from her interpretation of the law. There isn't, and it can't. Surely there is such a thing as results-oriented jurisprudence, but any judge acting in even the best of faith is necessarily going to see the case through the lens of her personal perspective-- this is true particularly at the court of appeals and SCOTUS level, where a fair number of cases are there precisely because the law provides no clear answer. So a judge's general ideological orientation is highly relevant to her performance on the bench, even in the absence of conscious bias or scale-tipping.

Posted by: JRD on March 17, 2009 at 11:10 AM | PERMALINK

I've found that surrender is a surefire way of avoiding war.

Posted by: Hyde on March 17, 2009 at 11:14 AM | PERMALINK

Never ceases to amuse me whenever the right complains about "judicial activism". Yet, they never said one word about Scalia, Thomas and Renderourlawsasunderquist deciding first that Bush should prevail, then had their law clerks find any reasoning to support that conclusion. This, Queen of Hearts trio, has never raised a frown from the right about legislating from the bench.

Posted by: berttheclock on March 17, 2009 at 11:41 AM | PERMALINK

If a judge knows what they are doing and happen to be progressive then thats great but I put a much higher premium on their ability to do their job than their political leanings.

I don't think Steve said anything that contradicts this. In arguing Obama should pick progressives, I think the starting assumption is that Obama's first choice would (often, but not always) be progressive anyway (and that his first choice would be someone who is qualified, not his own version of Harriet Miers), and he shouldn't pre-emptively abandon his first choice just for that sake of comity. That is, he should pick them because not doing so would be backing down from a fight, not because he should pick a fight.

Posted by: ibid on March 17, 2009 at 11:47 AM | PERMALINK

SadOldVet says: "Therefore, it is safe to assume that Hamilton is corporately owned - as Billy Bob never appointed anything else."

My brother was nominated for a federal judgeship by Clinton (stalled into oblivion by the Rethugs) and he is definitely not "corporately owned." Maybe you wouldn't be so sad if you were less knee-jerked.

The reason the Rethugs whine is that they know how effectively ruthless (not ruthlessly effective) a party in power can be and fear the Dums will do that to them. Sadly, there is no need to fear the wimpy Dems who fear the Rethugs and look for compromise and kumbaya.

Posted by: Frak on March 17, 2009 at 1:11 PM | PERMALINK

But within minutes of announcing the first court nomination, a conservative legal group labeled Judge Hamilton an "ultra-liberal" who is a "former fundraiser for ACORN [a liberal group that ran voter registration drives] and a former leader of the Indiana chapter of the ACLU."

http://www.swamppolitics.com/news/politics/blog/2009/03/obamas_first_judge_connected_l.html

So much for caution. Judicial nominations are going to be partisan and contentious for a long time. Don't forget, the Republican caucus has already let it be known that Obama should resubmit all the nominations that Bush made and that were still pending when his administration expired. As a good faith gesture. Remember, Republicans are the ones who fervently believe that bipartisanship is another name for date rape.

On a more prosaic level, does being a leader of a local ACLU chapter disqualify you for a seat on the federal bench? I mean is it somehow wrong to belong to "an organization whose sole purpose is to defend the Bill of Rights[?]" I would think that it should be a plus.

Posted by: majun on March 17, 2009 at 1:11 PM | PERMALINK

From a judicial point of view, I think we should nominate and confirm smart, even-handed, temperate judges who really know and really respect the law.

From a partisan point of view, Obama should nominate the hairiest liberals he can. Only some of them will be shot down. Fuck those guys who lost.

Posted by: Daddy Love on March 17, 2009 at 1:16 PM | PERMALINK

Dems and Reps playing by different sets of rules? No way!

The Democrats are trying to play a fair game of basketball. The Republicans just pick up the ball and run with it. Dems fume about this, but figure there's nothing they can do about it. But they definitely don't want to "pick a fight" by trying the same tactic themselves.

And then they wonder why they keep getting their asses kicked.

Posted by: Tree on March 17, 2009 at 1:46 PM | PERMALINK

Thinking about it more, I find it fascinating-- and probably encouraging-- that Obama nominated a sitting federal judge from Indiana for this position. Half the University of Chicago law faculty, where Obama spent several years, is gunning for a Seventh Circuit seat (and the other half already has one). Obama surely has friends in the Chicago legal community who could have been rewarded with this position, mayn of whom-- Cass Sunstein for example (yes, I realize he's no longer in Chicago)-- would have been eminently qualified. I don't know if Obama had any prior personal relationship with Hamilton, but I would suspect that a district court judge sitting in Indiana is probably not very connected to Obama's Chicago circle. I think this is a great sign that Obama takes judicial appointments as seriously as they must be taken and is putting ability before patronage.

Posted by: JRD on March 17, 2009 at 2:44 PM | PERMALINK

obama's living in a fool's paradise if he thinks he can nominate anybody to the left of "scalieto" without the right pitchin' a fit...and speakin' of that.....


Within minutes of announcing the first court nomination, a conservative legal group labeled Judge Hamilton an "ultra-liberal" who is a "former fundraiser for ACORN [a liberal group that ran voter registration drives] and a former leader of the Indiana chapter of the ACLU."

The Judicial Confirmation Network, which rallied support for President Bush's court nominees, said Judge Hamilton had issued "extreme rulings," including a decision that invalidated part of an Indiana law requiring the registration of sex offenders.

Posted by: dj spellchecka on March 17, 2009 at 2:57 PM | PERMALINK

The problem with the idea of appointing "moderate" judges is that Bush/Cheney/Rove moved the idea of moderate dramatically to the right. The center isn't where it once was, politically. The new moderate is the old extreme conservative.

I say screw all this moderation. We need some progressive judges on the bench. And sadly, we need to take a few lessons from the Repubs and appoint some younger judges to these lifetime seats. Traditionally, judicial appointments were reserved for older and more experienced judges. Bush threw that out and was appointing people with little experience. They will be on the bend for the next three decades. We don't need to be appointing women and men in their 60s who will only serve for a few years. That just gives the GOP a chance to either appoint or object when the seat is available again soon.

Posted by: Bucky on March 17, 2009 at 5:32 PM | PERMALINK




 

 

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