SCOTUS – Replacing Justice O’Connor

Maureen Mahoney received her J.D. from the University of Chicago Law School. At the start of her career, she clerked for Justice Rehnquist. She served as United States Deputy Solicitor General and was awaiting confirmation to a judgeship on the U.S. District Court when Congress failed to act on her appointment before the elections in 1992. As a litigator, she represented the U.S. House of Representatives and the Government of Saudi Arabia. She is a seasoned and highly successful Supreme Court litigator who currently leads the appellate and constitutional practice at Latham & Watkins in Washington, D.C.

Confirmation Strengths
Mahoney has attracted much attention for her impressive 12 wins out of 13 cases adjudicated before the U.S. Supreme Court. In Arthur Andersen LLP v. United States, 125 S. Ct. 2129 (2005), she argued for clarification and definitional consistency in the application of “corruptly persuading” and “criminal intent.” In 1999, she helped the U.S. House of Representatives defeat the Commerce Department’s plans to use statistical sampling in the 2000 census. Department of Commerce v. United States House of Representatives, 525 U.S. 316 (1999). Privacy advocates applaud her defense of the fundamental right to privacy in the bedroom. Lawrence v. Texas, 539 U.S. 558 (2003). The court identified, “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.” As a side note, Mahoney practiced for Lawrence vs. Texas at Georgetown University Law Center’s Supreme Court Institute.

One would expect her to be a strong advocate for inherent rights to privacy, women’s rights, and U.S. obligations to international law. She could attract support from Democrats interested in confirming a conservative nominee likely to defend and protect human rights, the right to equality before the law, and a diverse docket.

An additional benefit to her nomination would be the opportunity to revisit the life and legacy of Chief Justice Rehnquist, whose death received limited media coverage due to hurricane coverage and the speculation surrounding John Roberts’ nomination. The symbolic link between Rehnquist’s accomplishments and the continuance of his vision in one his former law clerks could serve as a powerful reminder of the court’s independent and stabilizing role during times of turbulent partisan politics.

Confirmation Battles
The lack of experience on the bench poses the highest hurdle. Will Congress tolerate confirming a nominee who has been only an advocate but never a judge? Unlike attorneys who argue one side to their favor, judges must sort out the matters of law and principle raised by both sides. Would she be able to convince Congress of her ability to understand and apply the underpinning theoretical and philosophical nuances of constitutional law (ConLaw) and the canons of constitutional interpretation? The weakness is further reinforced by her previous unsuccessful confirmation to the U.S. District Court.

Expect critics to attack her choice to defend the affirmative action program at the University of Michigan Law School. Grutter v. Bollinger, 539 U.S. 306 (2003), and Gratz v. Bollinger, 539 U.S. 244 (2003).

Judge Corrigan received her J.D. from University of Detroit Mercy School of Law. She served as Chief Assistant United States Attorney before her appointment to the Michigan Court of Appeals in 1992. Since 1998, she has served on the Michigan Supreme Court. In addition to coauthoring a treatise on civil procedure, authoring several journal articles, and fostering professional ethics training through American Inns of Court at Michigan State University College of Law, Judge Corrigan has earned numerous awards and a reputation for community outreach.

Confirmation Strengths
Judge Corrigan enjoys popular support in her community and was confirmed by election to the Michigan Supreme Court. Most recently, she won “The Detroit News Michiganian of the Year Award” for her work on foster care. She was also honored this year by the non-partisan Congressional Coalition on Adoption Institute (CCAI). Her middle-of-America blend of ethics, theory, and statutory interpretation appeal to a conservative base.

Confirmation Battles
Justice Corrigan lacks a record on both abortion and international law, and does not have federal experience. Moreover, she favors and advocates a narrow view of constitutional and legal analysis that rarely defers to the intent of the legislature or the consequences of the decision.

Like Justice Scalia, Judge Corrigan is a textualist, which means that she relies heavily on the literal interpretation of the text to determine the meaning of the law. Given that a textualist will enforce laws even when the outcome is deemed absurd or unjust, she can expect a rough time defending the use of the dictionary to the exclusion of congressional or constitutional intent, legislative history, and public policy implications. Must the Supreme Court always examine the plain language of a statute or the Constitution in absence of its context? If not, under what circumstances should justices use their discretion in interpreting the law? Her answers to questions related to the fundamental approaches to interpreting the law will be vital to a successful confirmation process.

One example of a seemingly unjust outcome based on textual interpretation of statute is embodied in the case of People v. Jagotka, 461 Mich. 274 (Mich. 1999). Judge Corrigan concurred with the constitutionality of destroying a blood sample used to convict a defendant before his case was fully adjudicated. The statute read, “The property and things so seized shall be safely kept by the officer so long as necessary for the purpose of being produced or used as evidence on any trial.” The court interpreted the statute to mean that only those things “seized” and “produced as evidence” in court need to be safely kept until the case is resolved. The blood sample was used indirectly to produce a report. Because the blood sample was not directly submitted as evidence, it fell outside the statute’s safekeeping provision without violating “the statute under its plain terms.”

This analysis demonstrates a lack of discretion on the part of the court to interpret the statute in favorable terms for the accused. How would Judge Corrigan read, analyze, interpret and apply the term “due process” of the Fourteenth Amendment? Would it be permissible for the federal government to destroy DNA evidence prior to the conviction and appeal of a defendant accused with a capital crime? What remedy is there for the innocent defendant to recover exculpatory evidence for verification, retesting, or additional analysis?

Judge Batchelder received her J.D. from Akron University School of Law and an LL.M. from the University of Virginia School of Law. She ranked in the top 10% of her class and served as editor of the school’s law review. She served on the U.S. District Court, Northern District of Ohio before being nominated by President George Bush, Sr. in 1991 to the U.S. Court of Appeals for the Sixth Circuit.

Confirmation Strengths
She is strong on bankruptcy and copyright. A thin link between her and Justice O’Connor is found in Judge Batchelder’s holding in the copyright case of Budish v. Gordon, 784 F. Supp. 1320, 1337 (N.D.
Ohio 1992). Judge Batchelder applied the “selection and arrangement” test of the originality requirement of copyright established by Justice O’Connor in the landmark case of Feist Publications Inc. v. Rural Telephone Service Company, 499 U.S. 340 (1991). Judge Batchelder’s holding that tabular information presentation involves creative selection and arrangement sufficient for U.S. copyright protect was cited in Cadence Design, Inc. v. Avant Corp., 125 F.3d 824 (9th Cir. 1997) and 17 U.S.C.S. § 502.

Confirmation Battles
Judge Batchelder is vulnerable to attacks on First Amendment issues, minority rights, and privacy matters; however, her moderately conservative rulings on a woman’s right to an abortion will most likely pose the greatest obstacle to confirmation, despite the close compatibility of her record with Justice O’Connor’s opinion on the matter.

• Privacy
Judge Batchelder’s opinions on cases dealing with personal rights and the protections of the Fourth Amendment are troubling. In 2002, she upheld the Fourth Amendment constitutionality of a Michigan law requiring drug testing of welfare recipients. Mich. Comp. Laws Ann. § 400.571(1).
She concluded that drug testing did not constitute an unreasonable search because welfare recipients have “a diminished expectation of privacy” and public policy and interests of the state to combat drug-trafficking are superior to the rights of privacy of welfare recipients. The decision was later overturned. Marchwinski v. Howard, 309 F.3d 330 (6th Cir. 2002) vacated by, rehearing, en banc, granted by Marchwinski v. Howard, 319 F.3d 258 (6th Cir. 2003).

• Abortion
Judge Batchelder’s Achilles heal may prove to be her 2003 concurrence on the constitutionality of a state law imposing new conditions on abortions. Under Women’s Medical Professional Corp. v. Taft, 353 F.3d 436 (6th Cir. 2003), the ban on a specific late-term abortion procedure known as “partial birth abortion,” was upheld as constitutional under the Fourteenth Amendment, which guarantees that no person shall be deprived of “life, liberty, or property without due process of law” and “equal protection of the laws.” Judge Batchelder defended the constitutionality of Ohio’s law, Ohio Rev. Code Ann. § 2919.151 (LexisNexis 2005), on the basis that it maintains the right of a woman to an abortion when necessary “to prevent significant health risks.” Abortion foes applauded the decision as indicative of a trend towards stronger restrictions while abortion rights activists criticized the decision as threatening the options and choices for women. This holding may provide fodder for attacks during the nomination process by liberal Democrats and strong women’s rights activists who require a Roe v. Wade litmus test. If nominated, Judge Batchelder will most likely be rigorously questioned on her predicted rulings on the constitutionality of federal and state laws banning other abortion techniques, restricting the rights to an abortion earlier in the pregnancy, and requiring a waiting period or parental approval.

Also expect Judge Batchelder’s ruling to be questioned in light of the narrow 5-4 U.S. Supreme Court decision in Stenberg v. Carhart, 530 U.S. 914 (2000, O’Connor, J., concurring in judgment in part and dissenting in part). The Court ruled a Nebraska statute unconstitutional, stressing that restrictions cannot be limited to situations where health risks are an absolute necessity or where medical opinion is required to be unanimous. Justice O’Connor, in her separate concurrence, indicated that she would be willing to uphold a state statute with both a narrow focus limited to one procedure and a health exception. These conditions appear to be congruent with the Ohio statute and Justice Batchelder’s opinion. Still, opponents to her nominations may limit their rhetoric and analysis of the two cases to Justice Batchelder’s disfavor by declaring in simple terms that she holds a state statute with abortion restrictions to be constitutional whereas O’Connor held a similar state statute to be unconstitutional. Such attacks could unfairly vilify Justice Batchelder as having “deviant” decisions in regards to women’s rights, when the facts do not support such a conclusion.

U.S. District Court Justice Karen (Johnson) Williams

Judge Karen (Johnson) Williams received her J.D. from University of South Carolina Law Center. She was
nominated by President George Bush, Sr. in 1992 to the U.S. Court of Appeals for the Fourth Circuit, located in Richmond, Virginia.

Confirmation Strengths
Conservative Republicans embraced her recent ruling upholding the constitutionality of a voluntary recitation of the Pledge of Allegiance in public schools in Virginia. Myers v. Loudoun County Pub. Sch., 418 F.3d 395 (4th Cir. 2005). The case involved a 2001 Virginia law requiring all public school children to learn the pledge and for all students to be given the opportunity to recite the pledge daily. Va. Code Ann. § 22.1-202(C). The Pledge statute, with the words “under God”, was adopted by Congress in 1942. 4 U.S.C. § 4 (2002). In writing the majority opinion, Judge Williams portrayed the Pledge as a “patriotic activity” rather than a religious activity. She further explained that by allowing students to opt-out of reciting the Pledge, the state law did not conflict with constitutional issues related to the Free Exercise Clause of the First Amendment, the Establishment Clause of the First Amendment, or the Due Process Clause of the Fourteenth Amendment. Equally, the law did not violate Title IV of the Civil Rights Act of 1964.

Confirmation Battles
Judge Williams’s philosophy of constitutional interpretation provides greater powers of finality, particularly in times of war, to the executive branch than to either the legislative or the judicial branch. This attribution of power to the President to do as s/he pleases allows for, but does not guarantee, that the standards and rules established by the other branches of government may be disregarded. In that sense, her rulings carry an unsettling message for the separation of powers and its check-and-balances role in maintaining a healthy democracy. One specific example of this potential threat to presidential accountability to Congress, the courts, the public, and the international community is her opinion, concurring in part and dissenting in part, in United States v. Moussaoui, 365 F.3d 292 (4th Cir. 2004).

The Moussaoui case involved the Sixth Amendment rights of Zacarias Moussaoui, a French national of Moroccan ancestry who was the only U.S. defendant charged in the September 11 attacks. Moussaoui sought to call other terror suspects in U.S. custody to testify in his defense that he was not involved in the attacks. The government opposed any access to or written depositions from those witnesses on the grounds of protecting national security concerns. Instead of actual testimony, the government offered to provide the defense with written summaries, known as “substitutions”, of detainees’ testimonies. The Sixth Amendment of the U.S. Constitution ensures inter alia the right of the accused to “a speedy and public trail, by an impartial jury” and “to be confronted with witnesses against him.” The Amendment concurs with the International Covenant on Civil and Political Rights, which outlines a fundamental right to "examine, or have examined, the
witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him" (Art. 14). The United States signed and ratified the treaty with reservations in June 1992.

Judge Williams ceded that Moussaoui had a constitutional right to information provided by witnesses in his favor and that the substitutions did not adequately protect that right. However, in her opinion, that individual right, as protected in the Bill of Rights, is inferior to the “Executive’s need to accomplish the war-making, national security, and foreign relations duties delegated to it by the Constitution.” Under the U.S. Constitution, Congress is authorized to declare war (art. 1, § 8 , cl. 18) while the President is empowered to serve as Commander in Chief (art. 2, § 2).