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The Judge Bush Should Get to Know…

Editorial

July 2005

by Peter W. Schramm

After two weeks of rampant speculation, consensus has settled on the theory that the President will nominate a woman to replace Sandra Day O’Connor on the Supreme Court, but there is little consensus as to who that nominee will be. Several of the better-known female judges—Edith Jones, Janice Rogers Brown, and Priscilla Owen—have been all-but-dismissed by the chattering class as too “controversial” to be nominated at this time. Attention, therefore, is turning to lower-profile judges who have thus far escaped the media’s glare.

Yet, like all shifts toward the unknown, there is risk. It is one thing to select a nominee who is not on the tip of everyone’s tongue, but who nonetheless has, through time and experience, demonstrated a consistent judicial philosophy and the capacity to handle difficult cases. It is quite another to pick a nominee precisely because she has not demonstrated her philosophy or handled complicated issues. The latter brings to mind Justice Souter, who proved to be such a stealth candidate that even his advocates arguably did not know his judicial philosophy until he took the bench.

Senator Arlen Specter and a number of Democrats in Washington have recently suggested that the President consider nominees from outside the ranks of the judiciary. The proponents of widening the search argue that such nominees would bring real-world experience and common sense from beyond the cloisters of the judiciary. Yet it is not apparent that simply looking beyond the bench will naturally supply these virtues. Indeed, if real-world experience and common sense are found in shorter supply anywhere than on the bench, it is probably in the groves of academia, or among the entrenched political classes—the two non-judicial categories most-often discussed.

Where, then, is the President to turn if he is looking for a lesser-known candidate, who has a record of consistent and conservative judicial philosophy, and one who brings a real-world, beyond-the-Beltway perspective? He need look no further than the federal courthouse in the small, almost picturesque town of Medina, Ohio, where even on a late Friday night, he would likely find Judge Alice Moore Batchelder toiling away. A person with a perfect judicial temperament, this judge from the United States Court of Appeals for the Sixth Circuit—Batchelder is also a judicial workhorse—is proving to be one of the most promising potential nominees to fill Justice O’Connor’s vacancy on the Supreme Court.

Alice Batchelder was raised in a modest Ohio home, where her parents baked bread and sold it to their neighbors to make ends meet through the Great Depression. Her father painted cars at the Ford plant to put himself through graduate school, instilling within Batchelder the work ethic that drives her to this day. Judge Batchelder began her professional life as a schoolteacher—something apparent to the recent law school graduates who serve as her clerks, who are frequently given lessons in grammar as well as law. When she decided to go to law school, she excelled, finishing at the top of her class, and serving as the editor-in-chief of the law review at a time (not so long ago) when such feats were virtually unheard of for women.

Batchelder spent 12 years in private practice, handling cases from family law, to contract negotiation, to litigation, before getting the nod for the United States Bankruptcy Court. President Reagan later appointed her to the federal district court, where she served with distinction for nearly 7 years before being appointed to the Court of Appeals by President George H.W. Bush. Her diverse judicial posts have proved beneficial to her performance as a circuit court judge, and that experience would inevitably aid her on the Supreme Court as well. She knows—not in a textbook sort of way, but from actual experience— what it is like to argue a case on one hand, or to make an on-the-spot evidentiary ruling on the other. And, in the mode of real world experience, Batchelder knows what it is to be a school teacher, a mother, a wife, and a judge—all from small town America.

While unpretentious, Judge Batchelder is well-read, peppering her opinions with quotes from the lofty heights of Aristotle’s Metaphysics to the whimsy of Alice in Wonderland. She can recite quotations from the Anti-Federalists as quickly as from the Federalists, and has the uncommon ability to reference minute details from cases she has not read in many years. I can tell you from personal experience that I have had a difficult time myself responding satisfactorily to her questions on whether or not the Anti-Federalists were right in their warnings about the separation of powers. She can make dinner conversation into a political philosophy seminar with ease, to the unease of this professor, never mind the lawyers she deals with.

Batchelder is also 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. 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.

In addition to her life experience and experience as a judge, there are salutary political reasons to appoint Batchelder as well. First, she hails from Ohio, which was not just an important state in the last presidential election, but was a critical state, where turnout was in large part motivated by concern for the judiciary. Ohio is going to continue to be important in elections yet to come, and appointing a native daughter like Batchelder would be an important move to showing Ohioans and conservatives alike that the President cares about the judiciary.

Second, and equally important, Batchelder would be a compelling nominee before the Judiciary Committee. Her amicable disposition will come through in the hearings, bolstered by the intellectual rigor to withstand the inevitable barrage of pointed questions which await any nominee. Indeed, several court watchers familiar with Batchelder have speculated that, given her demeanor and countenance, the use of grandstanding and haranguing questions by partisans would likely create a backlash in public opinion against aggrandizing Senators (that means you, Senator Schumer!), rather than the nominee.

There is increasing speculation that President Bush may be looking for a nominee who is less known to the general public and to the liberal advocacy groups who seek to attack any nomination made by this administration. Fortunately, finding someone less well-known does not mean that the President must nominate a candidate who is less experienced, less intelligent, or who has a less-than-solid jurisprudence. Anyone doubting this need only look to the federal courthouse in Medina, Ohio.

Peter W. Schramm is the Executive Director of the John M. Ashbrook Center for Public Affairs.