Cherries (picking) jubilee

President Obama has nominated David F. Hamilton, the chief judge of the federal Southern District of Indiana, to the United States Court of Appeals for the Seventh Circuit (which includes Wisconsin).

As is typically their wont, political conservatives are busily scavenging through Judge Hamilton's 15 years on the federal bench searching for selected, pleasingly outrageous and offensive tidbits.

One of the examples they've unearthed is Judge Hamilton's 2005 order preventing the recitation of overtly sectarian prayers in the Indiana legislature. Indiana's Assembly speaker brought the case to the 7th Circuit, where Judge Hamilton was reversed.

The federal appeals court determined that the four plaintiffs lacked standing to bring the original challenge to the sectarian prayers.

Prof. Friedman at Religion Clause notes Judge Hamilton's nomination in this post, which contains links to his earlier coverage of the prayer case, where the 7th Circuit panel's 2-1 decision can be easily located.

By most people, at least.

A commenter, who identifies himself as a lawyer in Washington State, deposited the following presumably rhetorical question:

"Well qualified" after he messes up a simple standing issue?

Ho ho! Because while Judge Hamilton did grant the plaintiffs standing, so did the same 7th Circuit court that reversed him.

What happened in the interim between Judge Hamilton's order and the 7th Circuit's Oct. 2007 ruling, however, is that the U.S. Supreme Court took up the specific question of (taxpayer) standing the preceding June in Hein v. Freedom from Religion Foundation, Inc.

(Hein originated in a federal court in Wisconsin, incidentally.*)

By that time, the 7th Circuit had already agreed with Judge Hamilton that the plaintiffs did indeed meet the requirements for standing. But Hein retooled those requirements by clarifying the case law that both Judge Hamilton and the 7th Circuit had relied upon:

Upon consideration of the Court’s disposition in Hein, and the parties' supplemental arguments [addressing the potential effects of Hein, if any], we believe that Hein requires us to revisit our preliminary determination that the plaintiffs possess the requisite standing to maintain this action.

Emphasis added.

That is, the 7th Circuit Court of Appeals reversed itself along with Judge Hamilton in light of the U.S. Supreme Court's decision in Hein.

So, no, Judge Hamilton did not "mess up a simple standing issue." And even if he did, so did the Court of Appeals that eventually reversed him "mess up" the exact same taxpayer standing issue (which is not by any means a "simple" question to begin with, as evidenced by the fact that it took the court 57 pages to explain it alone, without addressing whether the prayers were constitutional).

Yet even a conservative lawyer — who should know better — is only more than eager to leap embarrassingly to completely erroneous conclusions in the interest of scoring (failed) political points.

It's a highly instructive little case study.

* Where an astute reader below points out another federal vacancy announced today, with Judge Barbara Crabb assuming senior status.