Tuesday, July 19, 2005

Bush To Announce SCOTUS Nominee Tonight

Bush is set to announce his nominee to the Supreme Court tonight at 9pm Eastern. The better to get Karl Rove off the front page...

The most persistent rumor is that his nominee will be Judge Edith Brown Clement of the 5th Circuit Court of Appeals in New Orleans. She is one of the class of 2001; among the eight Bush nominated appellate court justices from 4 years ago that the Senate confirmed.

Will this choice be controversial? Will it spark a fight on the left? Signs right now are pointing to no. Arlen Specter (R-PA), Chairman of the Judiciary Committe, called on Bush to appoint a moderate and word is that he is happy with this appointment. Also, the only record of Judge Clement's having given to a political campaign was in 1987 when she gave to George Herbert Walker Bush's campaign, generally considered to be a moderate Republican, possibly signaling that she's no partisan.

Slate would seem to agree with this assessment. Judge Edith Brown Clement was the only woman featured in their July 1 profile of 8 likely SCOTUS nominees. Here's an excerpt:
Age: 57
Graduated from: Tulane Law School.
She's now: a judge on the U.S. Court of Appeals for the 5th Circuit
(appointed 2001).

Her confirmation battle: Clement doesn't provide much ammunition for opposition groups, but perhaps not much for conservatives to get excited about either. She hasn't written anything notable off the bench (or at least nothing that's come to light yet), and most of her judicial decisions have been in relatively routine and uncontroversial cases.
People For The American Way is less sanguine about the choice. They profile disturbing decisions of various of Bush's circuit court appointments, including Judge Clement, saying they (she included) have "confirmed our worst fears" about Bush's judges.

In fact, Senator Harry Reid's (D-NV) own analysis of decisions by the eight justices confirmed to appellate courts in 2001 points to a disturbing decision on the part of Judge Clement:
Judge Edith Brown Clement dissented from a 2-1 ruling in favor of African American plaintiffs in a civil rights lawsuit brought against life insurance companies that had maintained dual rate and dual plan policies by race, placing African Americans “in policies offering the same benefits as do policies sold to whites, but at a higher premium.”

The district court denied the plaintiff’s motion to proceed with a class action – which, in all likelihood, would have ended the lawsuit. The Fifth Circuit reversed, with Judge Clement dissenting. Bratcher v. National Standard Life Insurance Co., 365 F.3d 408 (5th Cir. 2004)

All in all there isn't much we know about how Judge Clement would lean on the more controversial topics of the day such as abortion and right to privacy issues. What do we know? Right wing RedState.org tries to appease its readers' fears:

I have been told by multiple parties that, though we know little about Judge Clement's leanings on social issues, we should make no mistake that her family background is conservative and that her husband is a "loyal" conservative. Also, I've gotten a few emails and phone calls from a few particular people who would know who all say that we should trust the President on this pick. I also know that lawyers in my home state of Louisiana like Clement and do think she is conservative.
...and addresses the probably political realities of this choice:

We don't know much else about Edith Clement. What we do know means the President has attempted to address Democratic concerns about replacing O'Connor with someone like O'Connor. We also know that Clement's background is more conservative than O'Connor's. We also know that there is a political calculus on having a photogenic female judge without any harsh statements on file, the record of an enigma, and the family pedigree of a rock solid conservative pass through the Senate without the expenditure of an extraordinary amount of political capital.
It would seem very un-Bush-like to nominate a moderate, considering all the flack he'd get from the right. But perhaps his concern now is to appease the moderates, most importantly those in the Senate who have to actually confirm his choice. Perhaps Bush is tired of defeats that have undermined his power and his popularity. Perhaps he wants this to go through nice and easy like. Well, that would all make sense if Bush were a pod person...that is to say if his body were taken over by a moderate alien life form. A more likely scenario is that Clement is indeed a conservative activist, the perfect kind -- a Trojan Horse conservative.

But yet another scenario has entered into the rumor mill fray: that Judge Clement is merely a decoy. A new rumor has it that the President plans a bait and switch: float the rumor that it's Clement then announce that his pick is actually Judge Edith H. Jones, also of the 5th Circuit Court of Appeals. If she's the pick, prepare for a serious fight. Here's a little sample of Judge Jones for ya to whet your appetite:
...if courts were to delve into the facts underlying Roe [v. Wade]'s balancing scheme with present-day knowledge, they might conclude that the woman's 'choice' is far more risky and less beneficial, and the child's sentience far more advanced, than the Roe Court knew." Judge Jones also stated that "[o]ne may fervently hope that the Court will someday acknowledge" the findings of post-Roe research on women's mental and physical health following abortion "and re-evaluate Roe and Casey accordingly." In conclusion, Judge Jones noted "[t]hat the Court's constitutional decisionmaking leaves our nation in a position of willful blindness to evolving knowledge should trouble any dispassionate observer not only about the abortion decisions, but about a number of other areas in which the Court unhesitatingly steps into the realm of social policy under the guise of constitutional adjudication.



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