Posted on 10/14/2005 8:09:20 PM PDT by Diago
Is there any room for Moses in an American courthouse? Or must the old lawgiver of Exodus 20 be forever banished into outer darkness? The Supreme Court may give us a hint after it hears argument in two cases presenting the same tough question: Is it constitutionally permissible for an agency of government, such as a public park or a county courthouse, to display the Ten Commandments?
On this issue, the lower federal courts are sharply divided. In Van Orden v. Perry, the 5th Circuit said yes, it's OK. In McCreary County v. ACLU, the 6th Circuit said no, it's not. The two cases will be argued before the high court on March 2. A third case, DeWeese v. ACLU, involves a courthouse in southwestern Ohio. It is actively pending on a petition for review -- and it raises a question of "standing" that deserves attention.
The Van Orden case involves a massive stone monument, engraved with the Troublesome Ten, that stands on a walkway adjoining the Texas state capitol. A panel of the 5th Circuit found that the monument did not violate the First Amendment. In the case from McCreary County, Ky., a panel of the 6th Circuit condemned a courthouse display of a framed copy of the Ten Commandments. The high court's opinion in this case will be based upon an almost identical set of facts in the DeWeese case from Richland County, Ohio.
The facts in the pending case from Ohio are not in dispute. In July 2000, James DeWeese, judge of the County Court of Common Pleas, posted a framed copy of the Ten Commandments on a side wall of his courtroom in Mansfield. Across from Moses he hung a similarly framed copy of the Bill of Rights. Elsewhere in the courtroom, visitors could find a portrait of Abraham Lincoln and a depiction of Ohio's seal with the state motto: "With God All Things Are Possible." In a lobby just outside the courtroom, visitors may inspect a display of 29 reproductions of historical documents.
The American Civil Liberties Union got wind of the judge's artwork. Somehow it enlisted the services of an Ohio lawyer, Bernard Davis, who "from time to time" practices law in Judge DeWeese's courtroom. There he is forced to come into "direct, unwelcome contact with the Ten Commandments display." This obnoxious experience so offended his sensibilities that he fled for relief to the ACLU (or the ACLU fled to him). He executed an affidavit attesting the unbearable damage he must endure.
No other affidavits or depositions appear in the Supreme Court record. No other members of the ACLU are named. No one testified. District Judge Kathleen McDonald O'Malley simply granted summary judgment to the ACLU. Last July a panel of the 6th Circuit summarily affirmed. U.S. District Judge Joseph M. Hood, sitting by designation in the 6th Circuit, brushed aside the county judge's defense as "contrived at best." The Bill of Rights poster "does nothing to negate the endorsement effect of the Ten Commandments poster."
Circuit Judge Alice M. Batchelder filed a powerful dissenting opinion. She began by questioning the role of the ACLU's paper plaintiff. His alleged "injury," in her view, was not sufficient to give him standing to sue.
Turning to the facts of the case, Judge Batchelder observed that the offending poster is a far cry from the granite monuments that have triggered other cases. "The text is so small that it cannot be read from the jury box, the witness stand, or the bench."
The ACLU had complained that DeWeese did not have a "purely secular purpose" in hanging the Mosaic text. Judge Batchelder dismissed the objection: "It is patently unnecessary for DeWeese to have had a purely secular purpose. He merely needed not to have a purely religious purpose." There was nothing in the record to suggest that the county judge was attempting "to instruct individuals that our legal system is based on moral absolutes from divine law handed down by God through the Ten Commandments."
Judge DeWeese had protested that he was not proselytizing anyone. He thought the framed commandments might foster debate "between the philosophical position of moral absolutism (as set forth in the Ten Commandments) and moral relativism in order to address what he perceives to be a moral crisis in this country." Such a purpose, said Judge Hood, violates the Establishment Clause.
Judge Batchelder had the last word: "A great many state educational institutions will be shocked, I suspect, to learn that fostering debate between philosophical positions is now unconstitutional in the 6th Circuit."
Last word? In this constitutional debate, the last word will never come.
(Readers are invited to send dated citations of usage to Mr. Kilpatrick in care of this newspaper. His e-mail address is kilpatjj@aol.com.)
Did the White House Smear Batchelder?
[Jonathan Adler 10/13 03:20 PM]
Sixth Circuit Court of Appeals Judge Alice Batchelder was reportedly on the Administration’s short list for a Supreme Court vacancy at some point. According to FNC’s Brit Hume, she was struck from the list because of a record of “judicial activism.” In response to Bill Kristol’s suggestion that Batchelder would have been a better nominee on Fox News Sunday, Hume said
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.Those familiar with Batchelder’s record were surprised at the charge. Over at No Left Turns, Robert Alt wonders where Hume got the idea that Batchelder is an “activist.”
When Kristol questioned this new smear tactic, Brit incredulously suggested that this is something he found on his own. But, as Brit’s first statement makes clear, the only way he could have gotten this information about White House opinion is by hearing it from the White House (unless of course he is simply reporting second hand reports—which would mean that he was engaging in rather loose reporting practices).If the White House was the source of this charge (and other unflattering and even more spurious notions floated about Batchelder in recent weeks), it is very troubling. As Alt observes, smearing qualified candidates for the Court is no way for this administration to win back the trust and loyalty of the conservative base.
fyi
More on Alice:
From Human Events:
http://www.humaneventsonline.com/blog-cb.php?range=09%2F11%2F2005+-+09%2F17%2F2005
Friday, September 16, 2005
Floating Batchelder: The buzz around the Senate Judiciary Committee confirmation hearings for John Roberts last week was that one of the people President Bush may be considering to replace Justice Sandra Day O’Connor is Alice M. Batchelder.
Batchelder is a Cleveland, Ohio-based judge on the U.S. Court of Appeals for the 6th Circuit. She was appointed to that bench by President George H.W. Bush in 1991. Before that she was a federal district judge, appointed by President Ronald Reagan. Her husband, Bill Batchelder, a state judge, formerly served as a conservative state House member and was the Ohio chairman of Reagan’s 1980 campaign. Judge Alice Batchelder was one of two appellate court judges who upheld Ohio’s partial-birth abortion ban in 2003, and last year she issued a powerful dissent from a ruling that ordered a local judge to remove a framed Ten Commandments from his courtroom. Politically, a Batchelder nomination would be a plus because of her conservative credentials and because she is from Ohio quot;a key swing state, where her views are popular. On the other hand, she is 61 years old.
a) Brit probably made it up.
b) It really chafes my butt when people use the word "incredulous" where they mean "incredible"..
Something is rotten in Denmark.
| Sexism, Elitism, Activism? In response to conservative opposition to Harriet Miers’ nomination, the Miers’ defenders have mounted a series of unworthy and, quite frankly, ridiculous attacks. First, Ed Gillespie appeared before a conservative gathering in Washington and suggested that the criticisms of Miers smelled of sexism and elitism. Gillespies’ comment, however, smelled of desperation--given that the short list preferred by conservatives included the likes of Judges Maura Corrigan (University of Detroit Law School), Alice Batchelder (Akron University School of Law), Edith Jones (University of Texas), Priscilla Owen (Baylor Law School), and Janice Rogers Brown (UCLA Law School). The comments were roundly ridiculed, but that didn’t stop Brit Hume from suggesting that David Frum, Bill Kristol, Charles Krauthammer, Laura Ingraham, and George Will are all school snobs who suffer from Ivy League blinders—notwithstanding their support for the aforementioned non-Ivy-League prospective nominees. Having failed in this first attempt, Miers’ defenders appear to be starting a whisper campaign against prominent—and notably more qualified—judges who were oft-mentioned as being on the short list. On Fox News Sunday, when Bill Kristol suggested that Judges Edith Jones or Alice Batchelder would have been better picks, Hume interrupted: Bill, 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. When Kristol questioned this new smear tactic, Brit incredulously suggested that this is something he found on his own. But, as Brit’s first statement makes clear, the only way he could have gotten this information about White House opinion is by hearing it from the White House (unless of course he is simply reporting second hand reports—which would mean that he was engaging in rather loose reporting practices). What then is to be made of this attack on Judge Batchelder? Despite the allegation of "all kinds of evidence of activism," neither Hume nor any other Miers’ defender has produced a single case. By contrast, at least one NRO writer has listed several specific cases demonstrating the fact that Batchelder has a record of ruling according to the dictates of the law, even when the law is contrary to her own policy preferences. As a former clerk to Judge Batchelder, I can attest that she is the very picture of judicial restraint—someone who has a solid record of not prejudging cases. And you don’t need to take my word for it: you can simply look at her 20 years of well-reasoned opinions. Now that Miers’ defenders are playing a game of confirmation "catch-up," they would do well to realize that they are not going to win over any conservatives by making spurious accusations about sexism, elitism, and activism--or by smearing the reputation of well-respected jurists. |
As I stated elsewhere, I know two people who worked for Alice. One as a law clerk and another an an intern. Both confirm she is a true conservative. The former law clerk told me she had great respect for Scalia.
Yes, the more we learn, the more disheartening this whole business is.
This is the type of judge that could have and should have been nominated for the Supreme Court vacancy. That Bush refused to says a lot of his lack principle, lack of conservatism and lack of honesty.
INTREP
But it is an effective way to put somebody from the White House compound on the Supreme Court, especially those less qualified than the smeared candidates.
Activism means she'd actually work to restore the rule of law and the plain meaning of the Constitution, unlike the Miers politic approach. What a disaster this pick is.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.