Go Ask Alice
Considering Judge Batchelder.


In the presidential debate last year at Washington University, candidate George W. Bush explained his philosophy for picking judges. He announced that he would select individuals “who would not allow their personal opinion[s] to get in the way of the law”–individuals who would interpret the Constitution, rather than legislate from the bench. With Justice Sandra Day O’Connor’s retirement, we have the first high-stakes test of President Bush’s promise. To fulfill this promise, President Bush could do no better than to appoint one of the less-known jurists whose name recently has been bandied about in the press: Judge Alice Batchelder–a judge who has made a career of applying the law rather than imposing her own policy preferences.

You may not have heard of Judge Batchelder. But the fact that she is less known is not a reflection of her judicial experience and capabilities. She has served as a voice of reason on the oft-contentious United States Court of Appeals for the Sixth Circuit (which hears cases from Ohio, Michigan, Tennessee, and Kentucky) for the last 14 years. Before that, she served as a federal-district-court judge, and as a bankruptcy judge–accomplishing all of this by the age of 60. In an era when women were hardly represented in law schools, she finished at the top of her class and was editor-in-chief of the law review, before going into private practice for 12 years.

But what is most impressive is not the number of years that Batchelder has served on the bench, but what she has done during that time. Sure, she has written such high-profile opinions as Plaut v. Spendthrift Farms–a landmark separation-of-powers case in which the Supreme Court affirmed her order striking down congressional legislation usurping judicial power. What has really distinguished Judge Batchelder’s tenure is her judicial approach–an adherence to the law which exemplifies the jurisprudence that the president has repeatedly praised.

A few cases just from the past several years demonstrate this fact. For example, in Ejelonu v. INS, Judge Batchelder was faced with a case of a young woman who was seeking to avoid deportation (a deportation caused in part, but not entirely, by the government’s delay in processing INS paperwork). Although the law was clear, the majority of the Sixth Circuit panel overturned an administrative court’s holding by relying on a centuries-old English writ that was explicitly abolished by Congress in the 1940s. Judge Batchelder was clearly moved by the petitioner, but she would not put her own sympathies above the requirements of the law. She wrote in dissent: “I do not want to see Ejelonu deported. If the majority’s opinion represented a legitimate means by which to overturn the [ ] deportation order, I could–and would–join it without hesitation. It doesn’t, and I can’t.” The majority’s opinion, which did represent the expression of the will of the judges rather than the law, was subsequently vacated by the full Sixth Circuit. The Ejelonu case demonstrates that Judge Batchelder is just the sort of judge who should appeal to both the Right and the Left: She seeks to cure inequities, but she will not run roughshod over the law to do so.

Similarly, in In re Dematteis, Judge Batchelder wrote the majority opinion, applying the Sixth Circuit’s precedent permitting partial discharge of student-loan debt in a bankruptcy proceeding. She did so because the law as interpreted by the circuit required that outcome; however, she wrote separately to detail why she believed that this was an incorrect interpretation of the law. In so doing, she followed precedent–as she is required to do–even when she believed it to be wrong. This is the very picture of judicial restraint.

These examples admittedly are not sexy, but if you want to see how a judge will handle a controversial case, look to see how that judge behaves in the day-to-day cases. (Anyone doubting this need only read an “uncontroversial” opinion of Justice Harry Blackman.) In each of these cases, Batchelder could have ignored or “reinterpreted” the law to comport with her views, but she did not. It is this devotion to law rather than to personal opinion that the president should seek.

This is not to say that Batchelder has not handled her share of controversial matters which likewise demonstrate her restrained judicial philosophy. Following the Sixth Circuit’s decision in the affirmative action case of Grutter v. Bollinger, Judicial Watch filed a judicial misconduct complaint against Chief Judge Boyce Martin, alleging that he rigged the panel slated to hear the case by inserting himself, and that he violated court procedure in handling a death penalty case so as to prevent members of the court from voting key motions in the case. Despite the politically charged nature of the complaint, Batchelder again complied with the law, which provided for dismissing complaints where corrective actions taken or imminent would prevent the harm from occurring again. Because the Sixth Circuit had issued new internal rules re-clarifying procedure, and because the Chief Judge was leaving his post, Batchelder dismissed the action based on the procedures outlined by Congress.

In addition to her restrained jurisprudential style, Judge Batchelder brings an extraordinary knowledge of complex law to the table. Her experience on the bankruptcy court and her handling of complex securities cases as a district court judge have earned Judge Batchelder a well-deserved reputation as an expert in business law. But this does not mean that she is a pushover for the corporations. Take, for example, the recent decision in Wolf Creek Collieries v. Sammons, a case involving a widow’s claim for Black Lung benefits. In her ruling granting widow’s benefits, Judge Batchelder chastised the corporation for dragging out the litigation in a “Thirty Years War.” This is not a judge whose decisions may be easily dismissed as either “pro-corporation” or “pro-plaintiff.”

Taken together, Batchelder’s decisions demonstrate that she has what might be called a judge’s soul: deliberative, infused with common sense, and confined by the limits of law. She is a restrained jurist without being a parody of one–she can stand up to the other branches of government when necessary. As Plaut demonstrates, she is more than capable of striking down legislation when it violates the Constitution, but as Ejelonu, DeMatteis, and the Martin complaint show, she is not prone to inserting her own preferences in place of the law.

Admittedly, this kind of jurisprudence will not sit well with some. There were plenty of conservatives who would have preferred the outcome if Judge Batchelder had extracted a proverbial pound of flesh from Judge Martin for his maladministration. Likewise, there are plenty of liberals who would have been happy to see Judge Batchelder ignore precedent in DeMatteis or put policy above the law in cases like Ejelonu. But for those of us who wish to see a Supreme Court where judges once again are bound by the law rather than seeing themselves as above the law, Judge Batchelder is just the woman for the job.

Christopher Flannery is senior editor of The Claremont Review of Books.