Thursday, May 12, 2005


Who is Joseph Bataillon

For starters, he is the judge who struck down Nebraska's constitutional amendment barring same-sex marriage or marriage-like arrangements from being recognized on a variety of federal constitutional grounds today. Plenty of other people have already started blogging about the decision, and I will simply state that I concur with Eugene Volokh's arguments.

I have not, however, yet seen anything blogged about Judge Bataillon's history.

He was nominated and confirmed by President Clinton in 1997 (on a unanimous vote). His legal career, according to the Federal Judicial Center, consisted of being a deputy public defender in Douglas County, NE, from 1974 to 1980 and in private practice in Omaha, NE from 1980 to 1997. He received his B.A. in 1971 and his J.D. in 1974, both from Creighton.

During the brief Senate floor discussion of his confirmation, Senator Bob Kerrey said that Bataillon had served in the Judge Advocate General's Corps. Why that would not be mentioned in Bataillon's official biography is unexplained.

Bataillon has had a few notable cases previous to this case.

He gained some measure of infamy for issuing a midnight restraining order against the U.S. Department of Agriculture, in a case where he sided with a meatpacking plant that was going to be shut down for repeated food safety violations, including fecal contamination.

He left one prominent criminal law blogger gobsmacked with an opinion last year on a sentencing issue where he stated that stare decisis bound him to NOT follow an opinion of the Eighth Circuit Court of Appeals, which sits above him, that had not yet become final.

He declared the electric chair to be an unconstitutional method of execution in dicta while vacating a death sentence because eligibility for that sentence was decided by a judge, rather than a jury (holding that the U.S. Supreme Court's Ring v. Arizona decision was retroactive). The Supreme Court later ruled that Ring was not retroactive.

He was also one of two judges (and the other was an Iowan) speaking along with Senator John Edwards at the kickoff event for the Iowa chapter of the American Constitution Society.

In short, there is a strong case to be made that Judge Bataillon is a liberal activist on the bench.

Right now, with filibusters about to be launched on several Bush nominees for the Court of Appeal, this decision shows the American public in a very graphic way the importance of who is nominated and confirmed for the federal courts. The "extremist" charges from Senators Leahy, Schumer, Reid, Boxer, et al. may be about to be turned back on them in a pronounced way - after all, this is the sort of ruling that "non-extremist" judges render.

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