The second-string Supreme Court shortlist.

The second-string Supreme Court shortlist.

The second-string Supreme Court shortlist.

The law, lawyers, and the court.
Sept. 30 2005 5:03 PM

The Second-String Supreme Court Shortlist

The judges the White House just started talking about.

The Bush administration has recently been professing its interest in nominating a woman or a minority to the Supreme Court—and to that end, floating a new list of judges as candidates. Two of the top names, Priscilla Owens and Janice Rogers Brown *, are familiar from the Senate battle over the filibuster that eventually ended with their appointments to the federal courts of appeal. But along with them (and with these candidates) there are some judges on the shortlist who remain fairly obscure. In case the White House decides to surprise, here's a guide to the views the new shortlist judges have expressed in their written opinions.

Photograph of Karen J. Williams
Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

Karen J. Williams

Age: 54
Graduated from: University of South Carolina Law Center
She used to be: A lawyer in private practice in Orangeburg, S.C.
She's now: a judge on the U.S. Court of Appeals for the 4th Circuit (appointed 1992)

Her confirmation battle: Williams is a solid conservative without a smoking-gun abortion decision to her credit or debit. She came to the attention of the right when she wrote a decision in 1999 scrapping the Miranda warning for criminal suspects (the Supreme Court reversed her 7 to 2). Since then, she has urged the courts to show broad deference to the president's war powers and rejected the notion that the phrase "under God" in the Pledge of Allegiance means that the pledge shouldn't be recited in public school. Both stances are sure to please Bush's base. Not much here for anyone else.

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Civil rights and civil liberties
In a 2004 appeal in the case of Zacharias Moussaoui, allegedly the 20th Sept. 11 hijacker, Williams dissented from a ruling giving the trial court the power to order the government to produce witnesses to testify on Moussaoui's behalf. The majority held that Moussaoui's right to a fair trial outweighed the government's interest in withholding the witnesses to protect national security. Williams' dissent said this approach prevents "the Executive from accomplishing its war-making, military, and foreign relations duties."

Over a dissent, in 2005 she rejected the asylum petition of a Chinese woman who said her government had required her to insert an IUD after she had a child without permission. Williams emphasized that the woman had left the IUD in place while in the United States, though the woman testified she had done so for fear that the Chinese authorities would punish her for removing it were she to return. Williams also distinguished between "insertion" of the IUD, which did not involve physical abuse, and "compelled IUD usage." The latter might rise to the level of persecution, she wrote. But because the woman (who did not have a lawyer) didn't directly raise IUD use in her petition, it was irrelevant to the court's decision.

In 1998, Williams dissented from a decision affirming a $60,000 jury award for a prisoner who suffered permanent damage to his jaw after his prison doctor did not make sure that he got follow-up treatment. Williams acknowledged that the doctor could have given instructions that the prisoner needed to go to an oral surgery clinic outside the prison as soon as possible. But it was reasonable that he didn't do so, she argued, because other prison doctors testified that they had been discouraged from calling the clinic.

Separation of church and state
In 2005, Williams voted to reject a 2005 challenge to the recitation of the Pledge of Allegiance in public schools by a father who objected to the phrase "under God." Williams said that the pledge is a patriotic exercise, not a prayer. She also relied on "the history surrounding our nation's founding," noting references to God in the Declaration of Independence and by the Constitution's framers.

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Criminal Law
In 1999, Williams attacked the Miranda warning. Miranda v. Arizona is the storied 1966 decision of the Warren Court that requires the police to read criminal suspects their rights. ("You have the right to remain silent ...") If the police screw up Miranda, a suspect's confession often gets thrown out of court. Two years after the Supreme Court made Miranda warnings the law of the land, Congress passed a statute expressly to get rid of them. (The law said that a confession would be admitted into court "if it is voluntarily given" and gave trial judges the job of making case-by-case calls about voluntariness.) But over the next 30 years, the Department of Justice never tried to use the law to prosecute a criminal case. In 1998, Miranda critic Paul Cassell filed a friend-of-the-court brief urging the Fourth Circuit to recognize Congress' power to override the 1966 decision. Williams took the bait. Over a dissent, she ruled for herself and a second judge that Congress had the authority to get rid of Miranda because the warnings were not required by the Constitution. The third judge on the appellate panel pointed out in dissent that Williams wrote her opinion without any briefing in opposition, saying "the majority takes on more than any court should." The Supreme Court reversed Williams' ruling 7 to 2, with Antonin Scalia and Clarence Thomas in dissent.

Free Speech
Williams voted in 2002 to strike down a Virginia law that prevented the Sons of Confederate Veterans from putting the Confederate flag on the group's customized license plates. Williams said the license plates were private rather than government speech. * In singling out the SCV by exercising special editorial control over the plates, she wrote, the state was discriminating against the group based on its viewpoint.

Habeas Corpus
Over a dissent, Williams in 2003 wrote an opinion for a majority of the Fourth Circuit rejecting the habeas petition of an inmate who filed his appeal one day late because of an error by his lawyer. She said the fact that the inmate was on death row was irrelevant to whether his late petition should be heard. She found that there were no extraordinary circumstances beyond the inmate's control that prevented him from filing on time.

Alice M. Batchelder

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Age: 61
Graduated from: University of Akron, J.D. 1971; University of Virginia, LL.M. 1988 *
She used to be: A lawyer in private practice in Medina, Ohio, a federal bankruptcy judge, and a U.S. district court judge
She's now: A judge on the U.S. Court of Appeals for the 6th Circuit (appointed 1991)

Her confirmation battle: Batchelder looks great to conservatives on the church-state front and on affirmative action. She has also expressed interest in making it harder for groups like the ACLU to bring suit—a view she likely has in common with new Chief Justice John Roberts. The strike against her is that she is a bit older than most of the competition.

Civil Rights and Liberties
In 2002, Batchelder dissented from the 6th Circuit's decision to allow the University of Michigan law school's affirmative action program, which gave preferential treatment to minority applicants on a case-by-case basis. Batchelder joined a dissent that called the law school's policy "a straightforward instance of racial discrimination by a state institution."

In 2001, Batchelder voted against the civil rights claims of a man who was arrested without a warrant while visiting a public-housing development where his family lived because he was on the housing authority's "no trespass" list. There were no set criteria for the list, which included 340 names; the man, however, had been arrested on the property 23 times. Batchelder ruled that he had no constitutional right to visit his family members and noted that he had not proved that they had invited him.

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Batchelder voted in 2002 to reject a challenge to Michigan's policy of requiring drug testing for welfare recipients. Batchelder cited the state's interest in preventing drug trafficking and protecting the safety of children receiving welfare. Welfare recipients, she said, "have a somewhat diminished expectation of privacy."

Separation of church and state
In 2002, Batchelder dissented from a decision refusing to allow the state of Kentucky to restore a Ten Commandments monument to the state capitol grounds. (The monument had been taken down to make way for construction in 1980.) She said the court should refuse to rule in the case because there was no evidence in the record about the "historic display" of which the Ten Commandments monument was to be a part. Without knowing more about the display as a whole, she argued, there was no way to tell whether the monument's inclusion would represent a state endorsement of religion.

In 2004, Batchelder dissented from a ruling that ordered an Ohio judge to take down a framed poster of the Ten Commandments from his courtroom wall. She questioned the ACLU's standing to bring suit. She also argued that the judge's purpose in displaying the commandments was "sufficiently secular." Batchelder stressed that the commandments were hanging opposite the Bill of Rights, in a room with portraits of Thomas Jefferson, James Madison, and Alexander Hamilton, and near a lobby with framed displays of famous American speeches. The Ohio judge, she wrote, "is clearly correct in arguing that government acknowledgement of the important foundational role of the Ten Commandments is indeed part of the fabric of our society."

Habeas Corpus
Batchelder voted in 2004 to reject the habeas petition of a death-row inmate whose IQ was one point above the legal standard for mental retardation. Batchelder's opinion for the appellate panel reversed a district-court decision to grant the inmate's petition because the court that tried him did not hold a hearing about his mental competency before he pleaded guilty. Batchelder said there was no "bona fide doubt" about the inmate's competence, noting that he had held down a job, had a driver's license, and had served in the military.

Photograph of Consuela M. Callahan
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Consuelo M. Callahan *

Age: 55
Graduated from: McGeorge School of Law
She used to be: Deputy city attorney for the city of Stockton, Calif., supervisory district attorney for San Joaquin County, Calif., California Superior Court judge, California appeals court judge
She's now: A judge on the U.S. Court of Appeals for the 9th Circuit (appointed 2003)

Her confirmation battle: As a diversity pick, Callahan is a twofer. But she hasn't been on the 9th Circuit long enough to amass much of a record there. That will make it harder for Democrats to fight her—and for Republicans to get excited.

Manufacturer liability
In 2004, Callahan dissented from the 9th Circuit's decision as a whole not to dismiss a nuisance suit against the gun manufacturer Glock. The suit was brought following a lethal shooting by a man who was barred by federal law from buying a gun. The theory was that Glock had created a public nuisance by failing to take minimal steps to prevent unlicensed gun dealers from selling guns illegally. Callahan called the impact of the majority's decision to allow the suit to go forward "staggering." She argued that any manufacturer of an "arguably dangerous product" could now be forced to defend itself against a suit by a victim of a criminal use of that product in California.

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Civil rights and civil liberties
Callahan voted in 2005 to reverse the dismissal of a sexual-harassment claim. The plaintiff was a prison guard who had been repeatedly propositioned by her co-workers and supervisor, who retaliated against her after she refused to go out with them. Callahan said the suit could go forward because some of the harassment occurred within the statute of limitations and amounted to "intimidating or demeaning the value of female employees who do not submit to demands for sexual favors." The law does not require "the harassing conduct to continue to escalate over time," she wrote.

Habeas Corpus
In 2005, Callahan dissented from a decision to allow a man who had been deported to Mexico to bring a petition in U.S. court claiming that he was a U.S. citizen. Callahan said that the man's "predicament was of his own making" because he had taken an assumed name, presented himself as a Mexican citizen when he was arrested by U.S. Border Patrol, and accepted deportation. She argued that it was too late for him to assert U.S. citizenship when he was arrested again after re-entering the United States.

Callahan dissented in 2005 from a decision to grant a new trial to a man convicted of murder, based in part on statements that one of his accomplices made to the police out of court. She said that the admission of the hearsay statements did not taint the verdict, because the other evidence linking the defendant to the murder was "overwhelming." The other two members of the panel sifted through the same evidence and found it lacking.

Corrections, Oct. 3: The article originally identified Janice Rogers Brown as Janet Rogers Brown. ( Return to the corrected sentence.) Also, the article originally stated that Alice M. Batchelder graduated from the University of Virginia School of Law. That is correct, but Batchelder received her J.D. from the University of Akron in 1971. She received her LL.M., an advanced law degree, from Virginia in 1988. ( Return to the corrected sentence.) The article originally identified Consuelo Callahan as Consuela Callahan. ( Return to the corrected sentence.) And on a final humiliating note, the article incorrectly stated that a Virginia law Williams voted to strike down in 2000 required the Sons of Confederate Veterans to put the Confederate flag on the group's customized license plates. The law in fact prevented the group from putting the Confederate flag on its license plates. (Return to the corrected sentece.)