All presidents aim to leave a legacy through the judges they appoint to lifetime seats on federal appeals courts. That’s why senators should be especially concerned about David Hamilton, an Indiana judge nominated to fill a vacancy on the Seventh Circuit.
When he announced the nomination, President Obama said that Judge Hamilton would set the tone for his future nominees. But Judge Hamilton’s record as a federal district judge includes plenty of reasons to wonder whether he deserves a promotion.
Hamilton has suggested it’s a judge’s job to make law. “Part of our job here as judges is to write a series of footnotes to the Constitution. We all do that every year in cases large and small,” he’s written. “Both the process of case-by-case adjudication and the Article V amendment processes are constitutionally legitimate, and were both, in my view, expected by the Framers, provided that case-by-case interpretation follows the usual methods of legal reasoning and interpretation.”
In other words, Judge Hamilton thinks that the decisions of federal district courts amend the Constitution, just as the amendment process does. This is unacceptable.
Judges act appropriately when they apply the law, not when they make it. And they certainly shouldn’t be in the business of trying to amend the Constitution by the whim of their decisions. Any judge who says that he or she makes law or amends the Constitution has a skewed vision of what the proper role of a judge is.
Also, like President Obama during the 2008 election campaign, Judge Hamilton has endorsed the “empathy” standard for judging.
He told the Senate Judiciary Committee that empathy is “important” in fulfilling the judge’s oath of office. Judge Hamilton explained, “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.” It’s worth noting that even Justice Sonia Sotomayor rejected the empathy standard in her confirmation hearing for the Supreme Court.