The fight over the future of the Supreme Court is not just about abortion rights. There’s so much more at stake, including the wall of separation between church and state, civil rights and civil liberties, privacy rights, environmental protections, and the ability of the government to regulate businesses to protect workers and consumers.
Having said that, what’s Edith Clement’s take on abortion rights?
The answer seems to rely on some interpretation. During her relatively brief tenure on the 5th Circuit, there were no major abortion cases, so we don’t know for certain how she’d rule. There are a few hints available about her perspective, but they’re not entirely elucidating.
On the one hand, there are reasonable-sounding quotes like this one.
Known as a conservative and a strict constructionist in legal circles, Clement has eased fears among some abortion-rights advocates. She has stated that the Supreme Court “has clearly held that the right to privacy guaranteed by the Constitution includes the right to have an abortion” and that “the law is settled in that regard.”
On the other, there was this item from Hadley Arkes in the National Review last week.
Edith Clement may be the stealth candidate who, for once, delivers to the other side the jolt of an unwelcome surprise. She may be the disarming candidate who truly disarms before she goes on to do the most important work that a conservative jurist at this moment can do.
Arkes added that he “guarantees” that Clement would uphold federal ban on late-term abortions and “would virtually bring to an end the Roe v. Wade regime.”
The trick of this is that these two are not necessarily contradictory. Clement’s recognition of Roe as “settled” law was the correct position to take — as a lower court judge. It merely showed respect for precedent. On the Supreme Court, however, Clement could rewrite precedent and establish new law.
Two weeks ago, a Republican planning document emphasized the need for a Supreme Court nominee to avoid disclosing his or her “legal thinking on any issue.” I hope Republicans aren’t counting on that; they’re likely to be disappointed.