Get to know Edith Clement

July 19, 2005

Just about everyone seems to believe that the decision has been made in advance of tonight’s press conference and that the president will tap Judge Edith Clement of the 5th U.S. Circuit Court of Appeals to succeed Sandra Day O’Connor on the U.S. Supreme Court. For the time being, let’s work under that assumption.

Politically, I’ll give the White House credit for strategic thinking. By making the announcement today, it will temporarily halt the feeding frenzy over Karl Rove’s role in the Plame Game scandal. And by nominating Clement, Bush has a) obviously chosen a woman to replace a woman; and b) picked a judge who was confirmed by the Senate in November 2001 after a 99-0 vote. Dems who raise concerns about Clement will inevitably have to explain why they voted to confirm her to the 5th Circuit just a few years ago. Of course, substantively a Supreme Court nomination is entirely different, but as a rhetorical matter, it’s likely to be a compelling GOP talking point.

So, let’s get right to it. What’s the reaction to Clement? I think it’s safe to say there’s plenty of room for concern with this nomination. Consider what Jeffrey Rosen wrote for The New Republic eight months ago:

…Clement has written little and therefore might be an appealing stealth candidate. But everything about her record suggests she is an enthusiastic supporter of the Constitution in Exile. This year, for example, Clement joined a blistering dissent by Judge Edith Jones objecting to the application of the Endangered Species Act to protect a rare species of underground bug. The U.S. Fish and Wildlife Service had denied a group of Texas developers a permit to build a shopping mall on the bugs’ habitat, and Clement and Jones objected that protecting bugs was not a commercial activity, criticizing their colleagues for creating “a constitutionally limitless theory of federal protection.”

The rest of her majority opinions and dissents as an appellate judge contain few clues about her judicial temperament, though she has been willing to enforce Fourth Amendment privacy claims in a few cases. In the absence of more information about her, Senate Democrats should approach Clement with caution.(emphasis added)

Rosen’s description raises serious cause for concern. If Clement, who is also a member of the Federalist Society, embraces the Constitution in Exile philosophy, she is part of a fringe judicial movement that believes the modern-day welfare state, the minimum wage, most labor laws, pollution-control statutes and business regulations generally are unconstitutional. As the theory goes, such laws and regulations interfere with an alleged “economic liberty” interest lurking somewhere in the Constitution. (A detailed examination of the Constitution in Exile approach ran in the New York Times Magazine in April.)

More to come. Stay tuned.

Bush nominating a “Constitution in Exile” conservative would be no suprise. The wealth of the elite is his first concern; the general welfare (read “well-being”) of the American people as a whole is not his concern at all. That’s what make Bush a miserable leader and a spectacular failure.

  • Anybody Bush nominates will be a Federalist Society type. That’s all there is to it. At least Clement doesn’t seem to be totally bonkers, a la Janice Brown.

  • Matt Davis’ comment is right: the best we can hope for is someone about whom you don’t automatically know their ruling on a given case. “Black box” justices like Scalia and Thomas are dangerous. Looking at the facts and law before deciding an outcome is what judges are supposed to do. Ideologues who wish to make political points through their judicial philosophy are the types I hope never to see appointed to the Court.

  • She isn’t manifestly bonkers and she’s not an author of our torture policy.

    It really sucks that our expectations are so low that we’re thrilled when Bush nominates somebody who isn’t certifiable and/or a war criminal.

  • Is there some way the Senate Dems can use the confirmation hearings not to block Clement but lay the groundwork for blocking a trully radical nominee (say to replace Rehnquist)? I.e. asking about judicial philosphies or something that in essence sets a litmus test for future nominees?

    I wish I were clever enough to come up with an effective strategy to do this. Especially as it may be the only hope we have to salvage anything good out of this.

  • Literalists, whether constitutional or biblical, are people who really lack respect for the documents they maintain to uphold. By taking the constitution absolutely literally, they go by the letter of the law and not the intent. In essence, Edith Clement is seeking to deconstruct the constitution by looking at the loopholes. She will not see the forest for the trees, nor understand the law for the words contained in it. The biblical pharisees were the folks that upheld the letter of the law but had disregard for the intent, hence the derision Christ heaped upon them. “Constitution in Exile” judges should also be regarded with scorn since they view the constitution in the narrowest of terms. These CIE judges claim that they are throwing out rights that don’t exist but are instead replacing them with “freedoms” that don’t exist either.

  • I’ll take a libertarian nut over a “let’s ban abortion and birth control and lock up them gays” social conservative nut.

  • Hey Edo,

    Keep a close eye on Sen. Charles Schumer (D-NY). He has already said that he will ask “those” uncomfortable questions. If anybody will lay some “groundwork,” Chuck will.

  • Have to go with Brian on that one. Assuming of course the libertarian nut is truly concerned with both economic *and* personal liberties.

  • Thanks slip. The more I see Schumer talk about his role on the Judiciary Committee the more I like him.

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