ACSBlog: The Blog of the American Constitution Society

Now that Harriet Miers has withdrawn her nomination, President Bush soon will nominate another individual to succeed Justice O'Connor.#160; One reported candidate for Justice O'Connor's seat is Judge Alice M. Batchelder of the United States Court of Appeals for the Sixth Circuit.

Judge Batchelder was born in Wilmington, Delaware, in 1944.#160; She graduated from Ohio Wesleyan University in 1964, after which she taught English in junior high and high school.#160; She then attended Akron University School of Law, where she graduated at the top of her class in 1971 and served as Editor-in-Chief of the Law Review.#160; Judge Batchelder's husband, Bill, served in the Ohio House of Representatives for thirty years and served on the Ohio Ninth District Court of Appeals until September 30, 2005.

After law school, Judge Batchelder went into private practice in Medina, Ohio, for 12 years, after which she became a U.S. Bankruptcy Judge.#160; She was then nominated by President Reagan to the District Court for the Northern District of Ohio in 1985.#160; During her tenure on the District Court, Judge Batchelder earned an LL.M. from the University of Virginia School of Law.

On June 12, 1991, President George H.W. Bush nominated Judge Batchelder to a seat on the Sixth Circuit Court of Appeals.#160; She has served on that court for fourteen years and is highly regarded within the circuit for her intellect and sense of humor.

Peter W. Schramm, Executive Director of the John M. Ashbrook Center for Public Affairs and Professor of Political Science at Ashland University, praises Batchelder as an "avid student of some of the latest scholarship in fields like law and economics, but does not commit the jurisprudential errors of someone like Judge Posner, who has suggested that economic policy may trump legislative judgments." He adds, "Given her scholarship, it should come as little surprise that she has written some of the most significant precedents in her circuit on complicated issues like intellectual property and antitrust law. And given her knowledge of the Federalist debates, it should be of little surprise that she has a well-formed view of the judiciary role within our constitutional order."

It was rumored that Alice Batchelder was on the Administration's short list at some point, but, according Fox News's Brit Hume, her name was removed for a record of "judicial activism." "I can tell you this about Alice Batchelder. She was very, very closely vetted. And you know what they found? They found all kinds of evidence of activism in her record. And they were quite surprised and not pleased to find that," said Hume.

Judicial Philosophy:
In a speech to the Ashbrook Center for Public Affairs at Ashland University last month, Judge Batchelder described her view of the judge's role in our Constitutional order:

The judge's job is not to determine the preferred policy outcome, but to determine whether the claim falls inside or outside the scope of the Constitution.#160; And this, I would submit to you, is a narrow function.#160; There have been a lot of times in my years as a judge when I didn't like the outcome that the law required, but it was not my place to substitute my policy choice for that of the legislators who drafted those law, to impose will instead of judgment, … but to hold my nose and decide.

Free Speech:For a hint about Judge Batchelder's First Amendment jurisprudence, look to Anderson v. Spear, 356 F.3d 651 (6th Cir. 2004), where the court struck down a Kentucky law that sought to create a 500-foot electioneering-free zone around polling places:

If the right to be left alone provides an insufficient basis for the states to restrict the display of profanity in the courtroom or Nazis marching down residential streets occupied by objecting holocaust survivors, then the State's interest in assuring that voters are not#160;subjected to any unwanted campaign speech alone cannot be a sufficient basis to regulate that clearly protected speech.

Commerce Clause: In her Commerce Clause jurisprudence, an example of which United States v. Min Nan Wang, 222 F.3d 234 (6th Cir. 2000), Judge Batchelder adheres closely to Supreme Court precedent in Lopez and Morrison.#160; In overturning a defendant's conviction under the Hobbs Act, Judge Batchelder wrote:

In the present case, application of these principles dictates reversal of Wang's conviction…. Wang robbed private citizens in a private residence of approximately $ 4,200, a mere $ 1,200 of which belonged to a restaurant doing business in interstate commerce. The Government made no showing of a substantial connection between the robbery and the restaurant's business, and the district court held that "there is no evidence of an effect on interstate commerce." In the absence of such a showing, there is no realistic probability that the aggregate of such crimes would substantially affect interstate commerce. Indeed, upholding federal jurisdiction over Wang's offense would, in essence, acknowledge a general federal police power with respect to the#160;crimes of robbery and extortion.

Choice: In the privacy realm, Judge Batchelder has applied Casey and its progeny to uphold Ohio's partial birth abortion ban. In Women's Med. Prof'l Corp. v. Taft, 353 F.3d 436 (6th Cir. 2003), Judge Batchelder joined an opinion written by Judge Ryan, which argued;

Along similar lines, although Carhart invalidates Nebraska's partial birth abortion ban, it does so only after acknowledging the legitimate relationship between the interest in protecting fetal life and the more subtle interests motivating the Nebraska legislature's decision to ban partial birth abortions: that is, showing concern for fetal life; preventing cruelty to partially born infants; and preserving the integrity of the medical profession.

Separation of Church and State: On Establishment Clause questions, Judge Batchelder seems to apply notably hazy Supreme Court precedent to allow religious displays.#160; In one case, ACLU of Ohio Found., Inc., v. Ashbrook, 375 F.3d 383 (6th Cir. 2004), Judge Batchelder dissenting, arguing that an Ohio state judge should have been allowed to post a small Ten Commandments poster in his courtroom.She wrote:

The Decalogue in Judge DeWeese's courtroom is not a large granite monument but a poster whose text is so small that it cannot be read from the jury box, the witness stand, or the bench….The poster hangs in a courtroom that also displays a poster of the Bill of Rights; three framed posters of Jefferson, Hamilton, and Madison that praise the jury system; the seal of the State of Ohio and the state motto "With God All Things Are Possible"; a portrait of Lincoln; and the United States and Ohio state flags. …Judge DeWeese…displayed these items so that he could use them in addressing community groups that come to the courtroom to learn about the origins of the law and legal philosophy.

For even more information on Judge Batchelder, check out this National Review article by Christopher Flannery. Click here to hear Batchelder's Constitution Day address: "The Judiciary: having 'neither Force nor Will, but merely judgement'"?