News reports state that David Hamilton, a federal district court judge in Indiana, will be President Obama’s first judicial nominee. He will apparently be nominated to serve on the United States Court of Appeals for the Seventh Circuit.
I am just learning about Judge Hamilton. In 2005, according to the New York Times, "he made news by ruling that the legislature was prohibited from beginning its sessions with overtly Christian prayers. The decision drew widespread criticism in the legislature and across the state."
I can only imagine.
The overwhelming majority of Indianans are Christian. I’d venture to guess that very few of them have ever lived in a society where theirs was a minority religion, and where the government officially promoted a religion that condemned theirs. The experience of their lives is one where they are comfortably in the majority.
As a Jew who grew up in conservative Texas, my experience is different. I know how it felt in elementary school when public school teachers imposed their Christianity upon the classroom. Officially-sanctioned Christianity regularly made it clear that I was an outsider in my own society: I did not belong.
That is but one of the many excellent reasons that the Founders wisely adopted the First Amendment’s prohibition of the establishment of religion by government. But it’s the one that first occurred to me as I read about the Indiana legislative prayer case.
It is important that judges as a group reflect the diversity of America, so the bench is filled with jurists with a wide variety of life experiences, ranging from the top to the bottom of the social ladder. But that does not excuse the individual judge from being able to step outside their own life experience and recognize that what is not a problem for them can be a severe problem for someone whose life has been different. That is an essential quality for a judge. It’s what made the Brown v. Board of Education decision so different from Plessey v. Ferguson, even though both cases were decided by all-white Courts. Similarly, it’s what made 1976’s Craig v. Boren (establishing a higher level of scrutiny for legal sex-based classifications) so different from 1872’s Bradwell v. Illinois (upholding the state’s prohibition against women attorneys), even though both cases were decided by an all-male Court.
Perhaps Judge Hamilton’s ability to step outside his own experiences helped him decide the legislative prayer case. Either way, he clearly was willing to enforce the First Amendment and clear Supreme Court precedent in a case where he knew that he would be condemned by many people in his state. He put the law over ideology. That’s another quality needed in a judge.
This is an encouraging first judicial nomination from President Obama.