Judge David Hamilton is at the center of the storm over Statehouse prayerDavid Hoppe
The federal courthouse is serious as a fist. It’s a thick-walled, neoclassical limestone box, complete with heavy, fluted columns and the sculpted figures of goddesses sitting blankly by each entry. On my way to meet Judge David Hamilton, United States district judge for the Southern District of Indiana, a man the Christian Coalition of America has dubbed an “arrogant judicial dictator,” I must pass through two sets of heavy glass doors and then empty my pockets of change and keys before passing through an airport-style security checkpoint. The surfaces of the walls and ceiling here are covered with finely crafted, colorful mosaics. The floors are marble. Although it is impossible to imagine a big city in America without a handful of dignified old heaps like this, it is equally impossible to imagine anyone today going to the trouble and expense of building one. The scale of things here is imposing, consistent with the governing concept that no one in this society is above the law. It’s also quiet. I take an empty elevator up to the third floor and find myself alone in a wide, empty hallway. Translucent globe lights hang down from the ceiling. My footsteps echo off windows that open out on to an austere rooftop courtyard where a breeze from ventilators blows ripples across puddles that have formed on a hardened surface of black tar. I pass the bankruptcy courtrooms — out of session at the moment. They’re like small chapels, complete with wooden pews. Judge Hamilton’s chambers are entered by way of a squawk box. First you identify yourself and then his assistant lets you in. The reception room is warmly lit and comfortably furnished. A coffee table is stacked with a plentiful supply of travel magazines. “The far left wants us to accept all sorts of filth on television, they want us to pay for things they describe as ‘art,’ such as a cross in a jar of urine … But heaven forbid someone should say a minister should pray in Jesus’ name at the end of his prayer.” —Micah Clark, American Family Association of Indiana In the course of a given year, Judge David F. Hamilton writes over a thousand pages of legal findings pertaining to the wide array of cases that come before him. He has the focused look of a scholar and, like a scholar, he tends to speak in thoughtfully considered paragraphs. But there is still something slightly boyish about him. It’s possible, when he lets his guard down, to guess that once he might have borne a resemblance to Martin Prince, Bart’s precocious classmate on The Simpsons. Hamilton grew up in Southern Indiana. His father and grandfather were both Methodist ministers. Hamilton attended a Quaker college, Haverford, in Pennsylvania, where he majored in philosophy and theology. “I spent a lot of time with Plato,” he says. “The Dialogues, where you have to ask questions and answer questions in order to learn how little we know.” After graduating in 1979, he attended the University of Tuebingen in Germany for a year on a Fulbright scholarship, immersing himself in the German language and, among others, studying the works of Dietrich Bonhoeffer. Bonhoeffer was a Lutheran pacifist who faced a moral crisis over Hitler, which led to his conspiring to assassinate the dictator and being executed himself. “That brand of thinking has been called ‘situational ethics,’” Hamilton says, “and is criticized for all kinds of terrible abuses and excesses. But you have to understand the origin of that thinking was, in essence, the question, ‘Would I be justified in assassinating Adolf Hitler if I had the opportunity in doing so to serve the greater good and save the lives of hundreds of thousands of other people.’ If you accept the premise that it was an acceptable thing for Bonhoeffer to do, you get into some very difficult line-drawing problems. It’s fascinating stuff.” Hamilton wanted to return to Indiana and get involved with public life. He decided his best course was to apply to law school and was soon accepted at Yale. He finished in 1983, clerked with Judge Richard D. Cudahy on the United States Court of Appeals for the 7th Circuit in Chicago and then moved to Indianapolis to practice law with the politically influential firm of Barnes and Thornburg. Hamilton soon found himself involved in Evan Bayh’s campaign for secretary of state. When Bayh was eventually elected governor, he chose Hamilton to be his legal counsel, a post Hamilton held through three legislative sessions. “At the time, there were a number of challenging lawsuits pending against the State of Indiana,” Hamilton recalls. “Lawsuits with the potential to take out any flexibility from the state budget, which potentially would require substantial tax increases. That would put courts in a position to make decisions regarding educational policy or fiscal or personnel policy. My job was to do what I could for the state in general and for the Bayh Administration in particular.” When an opening occurred for a federal judgeship in Indiana’s Southern District, Hamilton made it known he wanted the job. Federal judges are usually appointed by the president of the United States on the recommendation of the state’s U.S. senators. But the president was Bill Clinton, a Democrat, and Indiana’s senators were both Republican. Clinton turned instead to the state’s highest ranking Democrat, then Gov. Evan Bayh. Bayh recommended Hamilton. “The planets were lined up,” Hamilton says. “It was the right time, there was an opening and an opportunity. I was able to garner the support needed.” “We look forward to the day when all nations and all people of the earth will have the opportunity to hear and respond to messages and of love of the Almighty God who has revealed Himself in the saving power of Jesus Christ.” —Prayer said last year in the Indiana Statehouse If you Google “Judge David Hamilton” you will find yourself in a blizzard of newspaper clippings, blogs and other assorted press pertaining to the ruling Hamilton handed down at the end of November regarding prayer in the Indiana House of Representatives. Fifty-three prayers were offered during the 2005 session. At least 29 of those were offered in the name of Jesus. The sectarian, proselytizing character of these prayers had been getting on some peoples’ nerves and, in April, when the Rev. Clarence Brown not only offered a prayer, but was encouraged to lead the elected officials in a song, “Just a Little Talk With Jesus,” action was finally taken. The Indiana Civil Liberties Union filed suit on behalf of four citizens who argued that the way prayer was being used in the House crossed the constitutional line between church and state. Hamilton based his decision on a 1983 Supreme Court ruling. He wrote, “When the founders of this nation set the boundaries on the power of government, the first words they wrote in the Bill of Rights were ‘Congress shall make no law respecting an establishment of religion’ … The founders recognized that we are a people of many strong and vigorous faiths. They acted to protect the liberty to practice those faiths.” Hamilton did not ban prayer from the Statehouse, but he put limits on it. Invocations, he wrote, must be nonsectarian. Prayers must not be used to advance any one faith over any other. And they must not use Jesus Christ’s name or title, or any other denominational appeal. He made it clear that Speaker of the House Brian Bosma, who had himself named as the defendant in the case, had a responsibility to keep the lines between church and state clear. “If the Speaker chooses to continue to permit non-sectarian prayers as part of the official proceedings, he shall advise all persons offering such prayers … that the prayers must be non-sectarian and must not be used to proselytize or advance any one faith or belief,” Hamilton wrote. “This is an intolerable decision I hope cannot stand.” —Indiana House Speaker Brian Bosma “Our role is to decide controversies within our jurisdiction and to do so according to elaborate rules of procedure and usually well-developed bodies of precedents interpreting statutes or constitutional provisions.” Hamilton says this quietly, almost as if he’s talking to himself. He worries that he’s boring me, but his point is important. The law is dense, full of layers that may appear confusing but are actually there to prevent the kinds of over-simplification that can lead to unfairness and even tyranny. “We are generalists by design,” he says of himself and the four other judges that are his colleagues in Indiana’s Southern District — the part of the state that begins just above Kokomo and extends down to the Ohio River. “In a single day it’s easy for me to move from sentencing a bank robber to interpretation of a patent for a medical device to an insurance coverage dispute involving an automobile accident to deciding whether a person has been a victim of race discrimination in employment. That’s not unusual in any given day. The satisfaction of the job is the variety we are constantly called upon to deal with. We try to draw on the same core body of principles and reason.” A computer program is used to assign cases to the judges. It assigns cases evenly to judges over time. The judges cannot request cases or become specialists in certain types of disputes. “High profile, controversial cases — those are not cases we ask for,” Hamilton says with a rueful smile. “It simply turns out that way.” Hamilton continues, “Each area of the law has its own high points and low points. If you had told me in law school that I would have any interest in interpreting nuances of a particular provision of the tax code, or deciding questions of venue regarding which location should an important benefits case be held in, I would have been surprised to say the least. But I’ve enjoyed dealing with those kinds of problems.” Indiana’s Southern District carries one of the heaviest caseloads per judge in the country. Hamilton and his colleagues’ workload is approximately 35 percent higher than the national average. That’s because no new judges have been added here since 1971. An act of Congress is required to create a new judgeship. Additional judgeships have been proposed for the Southern District at different times over the years, but the legislation has wound up being used as a vehicle for other, controversial amendments that have been added in the hope of capitalizing on the original proposal’s momentum. The result is that Indiana is overdue for an expansion of its federal judiciary. Hamilton asserts that he and his fellow judges have been up to the challenge of their workload, thanks in large measure to excellent staffs and sophisticated information technology. He finds that the variety and intellectual stimulation afforded by the work keeps burn-out at bay. “Obviously, there is some degree of stress in the job in terms of having to make decisions that have significant effects on peoples’ lives. The standard advice for stress applies here: Try to get exercise and enough sleep, stay connected to the people you love and to friends and interests outside the profession. Try to make sure that you get away from the job for a while.” “Yet another example of a fringe group using an activist judiciary to force their nonbelief on believers because they are unable to enact their radical agenda via the democratic legislative process.” —Kokomo Mayor Matt McKillip Recently in Pennsylvania, a federal judge handed down a ruling against the incorporation of intelligent design as part of the public school science curriculum. Many observers were surprised to learn that judge was appointed by President George W. Bush. Hamilton argues that it is difficult to look at any judge’s day-to-day record and leap to a conclusion about which president appointed him or her. “That’s because of the way the processes of the courts work,” he says. “We’re talking here about the core elements of the rule of law. Decisions must be explained based on public records and in terms of statutory, constitutional language and precedents. You have to be willing to make a decision that would stand if the positions of the parties were reversed. The interpretation of the contract should be the same, whether it favors the local company or the out-of-town company. The interpretation of election law should be the same regardless of whether it is going to benefit one party or the other. Judges understand that decisions that are made have to be based on reason that will apply in the future.” In 1970, there was a dispute in Indiana over the election of Vance Hartke to the U.S. Senate. At issue was whether or not a recount of the votes should be permitted. At the time, John Paul Stevens, now a member of the Supreme Court, was one of three judges who heard the case for the 7th Circuit in Chicago. Stevens cast a dissenting vote, saying that he believed a recount would not harm the election process. Thirty years later, Stevens showed consistency of principle when he favored a recount in the presidential election in Florida. “I hope that’s the kind of example we all can learn from,” Hamilton says. “When I get a case, I don’t ask myself whether I would have voted for this statute if I’d been a member of Congress. That’s not my job … The judge takes an oath to uphold the Constitution and the laws of the United States. If there’s a matter of conscience and a judge is no longer able to do that, I think that judge has an obligation to leave office.” Hamilton believes that the sheer number and variety of cases judges see in the course of a career makes an ideological stance a practical impossibility. He points to job discrimination cases as one example. Sometimes, he observes, discrimination suits are warranted, but sometimes they are not. “Hear those cases for a year and you’ll find plenty of each kind. If anyone had the inclination to favor employers or employees they’d have to abandon that inclination very quickly in order to deal with the details. It’s often said God is in the details and I think that’s true in law.” Hamilton turns to physics for an analogy. “The law is a lot like fractals in the sense that you can find levels of complexity, general rules with exceptions and exceptions to the exceptions depending on how tightly you focus in on a particular area. On the District Court level we tend to focus pretty tightly on the details of a specific case.” Not only that, Hamilton also notes that the federal courts themselves have complicated and elaborate rules of procedure that can have a bearing on the outcome of cases. “The reasons we have those procedures are to try to insure full and fair presentation of opposing sides and viewpoints without undue waste of time and without undue expense. If we do not enforce those rules then various forms of unfair tactics would become available to parties — courts might make decisions without hearing from both sides or without giving fair notice to the other side about what their claims or defenses might be. “At the same time, the rules are so complicated that there can be traps for even very capable lawyers. So judges are given some discretion — not in deciding what the rules are, but in how tightly they will be enforced. Reasonable and conscientious judges reach different decisions from time to time. In that sense, the call is not was that a ball or a strike. But taking into account what happened and its effects on both parties, what are the practical consequences … Judges do have an obligation to see that justice is done.” “Instead of responding in a positive way to the uproar in the United States Congress and legislation combatting [sic] judicial tyranny — and to the American people’s revulsion of left-wing judges legislating from the bench — arrogant federal judges are just increasing their hostility toward Christianity.” —Christian Coalition of America Web Site It’s 3:30 on a Wednesday afternoon in January. Daylight glows through drawn white curtains in Judge David Hamilton’s courtroom. A clutch of men in dark suits stand around a wooden table, making small talk. Then a door opens and a prisoner in an orange jumpsuit enters and is given a seat. He is escorted by two U.S. marshals, a man and a woman. The woman marshal greets the men already in the room, saying, “Here comes the Dream Team.” The other marshal says, “Apparently one of the jurors had a disturbing dream last night.” It’s unclear whether this is meant to be a joke. “All rise.” Another door opens and Judge Hamilton enters. His demeanor is more earnest than stern. He is businesslike. The prisoner is brought before him, JAIL written across his back in block letters. His name is Smith and his lawyer says he wishes to plead guilty to the charges against him. In June and July Smith is alleged to have gone on a crime spree, committing and attempting armed robberies at a string of convenience stores and restaurants. There are seven charges against him, including that he fired a gun in the commission of these crimes. There are victims; people were hurt. Judge Hamilton tells Smith he needs to ask him some questions and that he wants to make sure Smith understands what he’s agreeing to do. He says there’s no hurry. Hamilton asks Smith about how far he got in school (grade 11), work experience (warehouse), whether he can read a daily newspaper (he says he can). He wants to know, among other things, if Smith has talked to his lawyer and whether the lawyer has explained his options to him. At several points he pauses and asks Smith if he feels OK. Throughout his questioning, Hamilton betrays no hint of judgement through either his tone of voice or body language. He could be a counselor making sure his student understands the credits he’ll need in order to graduate, except in this case Smith needs to understand that in exchange for telling the government everything it wants to know about his criminal history he could be looking at 20 years in prison. Hamilton wants Smith to know that by pleading guilty, he will be forfeiting his right to appeal, to a jury trial, to ever vote. “I’m not asking whether you’re happy about that, but whether you agree,” says Hamilton simply. Smith says that he does. Still, Hamilton takes his time and methodically explains the implications of Smith’s decision. He gives him every chance to back out, to take his chances with a jury and reasonable doubt. “What happens here will be final,” Hamilton says. And you wonder if Smith can grasp that — if anyone really can. Finally, there is nothing left but for Hamilton to read the charges, one at a time. Smith pleads guilty to every one. And that is Hamilton’s judgement. He tells Smith that sentencing will be handed down at a later date. Court is adjourned. Editors note: On Feb. 13, the Indiana House voted 83-0 by way of opposing Judge Hamilton’s finding that proselytizing prayers in the Statehouse are unconstitutional. The Senate approved a similar resolution in January. Both votes were symbolic; neither has the force of law. Rep. David Orentlicher, the only Jewish member serving in Indiana’s Legislature, stayed away from the House on the day of the vote to protest the resolution. In another development, U.S. Rep. Mike Sodrel has introduced federal legislation to end federal courts’ jurisdiction over the content of speech in state Legislatures. Sodrel is up for re-election this November. House Speaker Brian Bosma asked the 7th U.S. Circuit Court of Appeals in Chicago to overturn Judge Hamilton’s order. But on March 2 that court upheld Judge Hamilton’s decision. In a 2-1 decision, the appeals panel wrote that the U.S. Supreme Court clearly has favored prayer that does not advance one religion over another. Bosma says he will now take his appeal to the U.S. Supreme Court.