In fact, judges are supposed to base their decisions on the law, not on whether they have sympathy for or dislike of the parties before them. They take an oath to administer justice without regard to the identity of the persons before the court. Elevating “empathy” above the requirements of law in the courtroom encourages judges to treat people differently because of who they are or what group they belong to. Recall the New Haven Firefighters case, where the Second Circuit, which ruled against the white firefighters who did well on the exam and was reversed by the Supreme Court, felt compelled to say that it cared about the white firefighters too, even as it denied them the promotions they had earned.
Perhaps because of his inclination to remove the blinders from Lady Justice, Judge Hamilton has a reputation for leniency in criminal cases. The Almanac of the Federal Judiciary quotes comments from local practitioners, who say that he is “the most lenient” of the judges in the district and the “best chance” for a sentence lighter than the federal sentencing guidelines would call for.
The Seventh Circuit’s decision in United States v. Woolsey bears this out. The appellate court threw out the lenient sentence Judge Hamilton imposed and told him to impose the life sentence that was called for. The court reminded Hamilton that he was “not free” to disregard a prior conviction and noted that the statutory penalties for repeated criminal activity “are not optional, even if the court deems them unwise or an inappropriate response to repeat drug offenders.”
In another case, Judge Easterbrook of the Seventh Circuit upbraided Judge Hamilton for his ruling in A Woman’s Choice v. Newman. In Newman, the Seventh Circuit reversed his decision to block the enforcement of Indiana’s law requiring informed consent for abortions. Judge Easterbrook wrote that Judge Hamilton was the only judge in the country who had held such a law unconstitutional since 1992. He noted that, “for seven years,” Judge Hamilton had refused to let Indiana enforce a law “materially identical” to laws that the Supreme Court, the Seventh Circuit, and the Fifth Circuit had held constitutional. Of course, Supreme Court and Seventh Circuit decisions are precedents that are binding on district court judges like Judge Hamilton.
His mistaken view of the proper role of a judge may help to explain Judge Hamilton’s apparent resistance to applying binding precedents. Senators should carefully consider this vision before voting to promote Judge Hamilton to the Seventh Circuit Court of Appeals.