« Lots of headlines about death penalty reform debates | Main | First Circuit affirms sentence of "87-month term of immurement" »

March 17, 2009

Here comes the Obama judges ... do we need to prepare for the "mass freeing of criminal defendants"?

Just before the 2008 election, Senator John McCain wrote this op-ed asserting that "Obama's judges would coddle criminals,"  and Professor Steven Calabresi, in this op-ed in the Wall Street Journal, warned that if Barack Obama becomes President and appoints a large number of federal judges, "we could possibly see ... the abolition of capital punishment and the mass freeing of criminal defendants."  If anyone took this heated punditry to heart, now it's time to double-lock the doors and keep the kids from playing outside: according to this New York Times article, "President Obama is expected to name his first candidate to an appeals court seat this week."

Interestingly, the headline for this Times report is "Moderate Is Said to Be Pick for Court," and here are a few more particulars:

President Obama is expected to name ... 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.

Ooh, Judge Hamilton sure does sound scary, doesn't he?  And given that Judge Hamilton is from the state that birthed infamous figures like Senator Ted Stevens and speeder David Letterman (not to mention Chief Justice John Roberts and Johnny Appleseed and Larry Bird), who knows what we should expect once Judge Hamilton gets a chance to use his Hoosier charms to influence the likes of Judges Easterbrook and Posner on the Seventh Circuit.

All kidding aside, the Times article notes a recent sex offender sentencing ruling by Judge Hamilton that likely will get (too much?) attention given the modern affinity for partisan judicial confirmation battles:

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.

I reported and linked to this ruling by Judge Hamilton in this post, where I speculated that this 52-page(!) ruling "might make its way to the Seventh Circuit and perhaps further."  I do not know if Judge Hamilton's ruling has been appealed, though I suspect we will hear a lot more about this case if Judge Hamilton is soon tapped to move up to the Seventh Circuit.

Some related old and new posts on judicial appointments:

UPDATE:  And so it begins.  This official press release reports that "President Barack Obama announced his intent to nominate Judge David Hamilton to the United States 7th Circuit Court of Appeals."  In response, former judge Paul Cassell at Volokh here describes Judge Hamilton as " a very sensible and reasonable person -- a good selection for the Seventh Circuit."  But the folks at National Review's bench memos do not seem too pleased as evidenced by these new posts over there:

March 17, 2009 at 10:23 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Here comes the Obama judges ... do we need to prepare for the "mass freeing of criminal defendants"?:


Judge Hamilton's ruling was in a civil case. According to the docket, that case settled last September. No appeals were ever taken.

Posted by: ab | Mar 17, 2009 10:39:48 AM

Political affiliation or ideology have no effect. So Scalia loosed far more vicious criminals than Brennan by his leadership in repealing sentencing guidelines for the federal and for state courts.

What counts is the indoctrination all law students endure, and the resulting placement of lawyer rent seeking as a priority above all others.

Posted by: Supremacy Claus | Mar 17, 2009 11:25:46 AM

Did anyone else know that sentencing guidelines have been repealed? And that vicious criminals have been "loosed" because of the repeal? This is news to me...thanks for the breaking news, Supremacy Claus.

That comment is almost as hyperbolic as McCain's and Calabresi's were.

Posted by: DEJ | Mar 17, 2009 11:41:26 AM

after a hiatus, one of the worst legal blog trolls has apparently returned.

Posted by: anonymous | Mar 17, 2009 12:49:17 PM

Obama announces first judicial nomination

"The president taps Judge David F. Hamilton of southern Indiana for 7th Circuit Court of Appeals in Chicago. A conservative legal group immediately objects, calling Hamilton an 'ultra-liberal.'"

Is he "ultra-liberal' compared to the 'ultra-fascist'?

Posted by: George | Mar 17, 2009 1:15:54 PM

The AP says he's a "moderate," but one of the columnists at NRO notes that he's Dawn Johnsen's brother in law.

Apparently, the "ultra-liberal" label is insufficient for Dawn Johnsen. She gets the rare grand prize of being labeled "perhaps the hardest left radical Obama nominee to the Department of Justice"


That's right... there's a level higher than "ultra."

Posted by: anonymous | Mar 17, 2009 1:26:59 PM

If a rule is permissive it is no longer a law. The trial is mostly irrelevant. The biggest impact of the Scalia Bounce is stealthy. These cases have likely deterred prosecutors, and taken away the threat of the guidelines. In the next five year, the crime victimization rate will revert back to that of the 70's and 80's. One of the few successes of the criminal law, the 40% drop in crime in the 1990's, in the face of the devastation of the family, and the general attack on all authority except central government, that has come to an end.

Posted by: Supremacy Claus | Mar 17, 2009 3:27:25 PM

What is sad about this, is that Obama has promised to listen to people that he disagrees with. And, indeed, I think he has. What does the NRO and its ilk do? Respond with silly epithets like “liberal” or “ultra liberal.” These are jurists with long written records. If someone thinks that they have gaps in their knowledge of modes of thought incompatible with good judging, then they could simply provide the text of the opinion and show why it is wrong. But, NRO does not. Instead, NRO makes its money by trolling people that are biologically disinclined to read.

Hey Behar, Why don’t you stop filing pro se appeals?

Posted by: S.cotus | Mar 17, 2009 10:45:38 PM

I like the NRO article. Three pieces of evidence for Hamilton's Stalinist tendencies. One, his brother is left-wing. Two, he used to be an activist. Three, he has an extensive history of crazy liberal rulings. Oh, wait, article stopped at two and never addressed his time as a judge.

Posted by: DM | Mar 18, 2009 12:46:13 AM

The irony? By physical proximity to the criminal, the criminal lover lawyer and criminal lover judge increase their risk of being crime victims.

However, it is the nation, especially the poor, that will pay the highest price. There will be an explosion of crime victimization. There will be a major terrorist attack. It is at that point that all accounts get settled with the internal traitors. They will be arrested, have brief trials, and meet their fates right from the courthouse trees. The lawyer hierarchy will be swept away. Lawyer control laws will end the tyranny of this incompetent, worthless, rent seeking, antiscientific, Scholasticist garbage, criminal cult enterprise.

Posted by: Supremacy Claus | Mar 18, 2009 2:56:07 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB