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Think Progress on Clement[Jonathan Adler 07/19 04:20 PM]
Two posts on the Center for American Progress' new judicial blog start the criticism of Judge Clement. First, Eduardo Penalaver suggests Clement "stands among the most conservative judges on one of the most conservative courts in the country," at least on the issue of sovereign immunity because she appears to believe in it. Penalaver gives little consideration to the fact that the opinion is a reasonable interpretation of existing Supreme Court precedents supporting sovereign immunity — opinions joined by the Justice whom Clement may be nominated to replace. By that standard, Clement's decision to join this opinion dissenting from denial of an en banc petition is hardly remarkable.Brad Joondeph follows up with a post suggesting that Clement may believe federal civil rights laws are unconstitutional. Where would he get this idea? From a dissent from denial of an en banc petition written by Judge Edith Jones in a case challenging the constitutionality of an application of the Endangered Species Act, GDF Realty v. Norton. In that opinion, Judge Jones argued that “the regulated activity is the take [of the species]" — in this case a bunch of cave bugs — rather than any commercial activity. On this basis, Jones concluded that the federal government lacked the constitutional authority under the commerce clause to prohibit the development in question. Joondeph suggests this would place federal civil rights statutes in jeopardy because they prohibit discrimination, rather than economic conduct. This is absurd. The Civil Rights Act bars racial discrimination in employment and in public accommodations — in other words, it is confined to economic contexts and therefore fits neatly under commerce clause authority under current precedent. Moreover, Jones' opinion made clear that part of the problem for the Feds in GDF Realty was that the species in question — a collection of cave bugs that only exist in Texas, have no commercial value, and never leave their caves, let alone the state — had a particularly tenuous connection to interstate commerce. Therefore application of the Endangered Species Act here was more problematic than in cases involving more economically valuable species, such as wolves or migratory birds. The idea that this application of commerce clause precedent would threaten laws barring discrimination in hiring or public accommodations is simply unfounded.

"This Would Be War"[Kathryn Jean Lopez 07/19 03:44 PM]
John King just now on CNN speculating on Janice Rogers Brown as a "wild card."

Clement's Opinions and More[Jonathan Adler 07/19 03:31 PM]
SCOTUSBlog's Tom Goldstein is posting summaries of notable Clement opinions here. He's also collected more Clement-related resources here.

What If It Were Ashcroft? Pryor?[Kathryn Jean Lopez 07/19 03:28 PM]
Ramesh has two posts you'll want to read up in The Corner on abortion and Clement.

Charmaine Yoest[Kathryn Jean Lopez 07/19 02:40 PM]
wants a man

Bait and Switch?!?[Jonathan Adler 07/19 02:38 PM]
This would certainly set off Washington. I don't believe it, but it's an interesting thought.

Prime Time Pick[Jonathan Adler 07/19 02:29 PM]
I agree, Kathryn. The President's decision to announce his first Supreme Court nomination is a very wise move. One of the lesson's of past nomination battles is the importance of defining the nominee before the opposition. This is particularly important with Supreme Court nominations where less of the battle will get waged under the radar. Starting tonight, and on tomorrow morning's news programs, the video will be of the President commending his nominee, rather than a Massachusetts Senator warning of segregated lunch counters and back alley abortions.

Clement, Natch[Kathryn Jean Lopez 07/19 01:53 PM]
is doing ridiculously well over at TradeSports.

Anyone Know Where Janice Rogers Brown Is Right Now?[Kathryn Jean Lopez 07/19 01:47 PM]
The president surely would get the media annoyed if he announced, say, the first black woman SCOTUS justice tonight.

Dems Are Not Being Serious[Kathryn Jean Lopez 07/19 01:20 PM]

John Lott looks at some senatorial suggestions.

Ediths[Kathryn Jean Lopez 07/19 01:19 PM]

What Hadley Arkes wrote earlier this month:
But my own hunch is that Luttig, McConnell, and Roberts are likely to come forth when the departure of the chief opens up another slot, either to replace Rehnquist or to take the place of a sitting justice raised to his current office. Of course, I could well be wrong — and in case anyone missed it, I repeat that I may be wrong — but my own hunch is that, for very good reasons, the choice for O'Connor's spot may center on the two Ediths: Edith Jones in Texas or Edith (Joy) Clement in Louisiana.Edith Jones has the sharper definition as a conservative, tagged as pro-life in her perspective, and she is bound to draw the heaviest fire. Joy Clement, in contrast, would be a harder target: Her own specialty was in maritime law; she has not dealt, in her opinions, with the hot-button issues of abortion and gay rights; and she has stirred no controversies in her writings or in her speeches off the bench. She would be the most disarming nominee, and it would be a challenge even for Ralph Neas or Moveon.org to paint her as an ogre who could scare the populace. The main unease would come in the family of conservatives: If people don’t know her personally, they will suspect another Souter or Kennedy. For they have seen the hazard in relying on the assurances given even by the most reliable conservatives, who claim they can vouch for the nominee.I would vouch for Joy Clement myself, and I would vouch for Edith Jones. But as I commend Joy Clement, I open myself to these searching questions from friends who have suffered the lessons of experience: If we know little, really, about her philosophy or jural principles, how do know that she will not alter when she is suddenly showered with acclaim from the law schools at Harvard and Columbia? Will she not be lured as she is praised in measures ever grander, as a jurist of high rank, as she “grows” with each step ever more “moderate” and liberal? Those who commend her face the risk of joining the ranks of those who offered assurance on Kennedy and Souter, and lost forevermore their credibility.But even more unsettling than that, the willingness to go with the candidate without a crisp, philosophic definition may mark the willingness to act, once again, within the framework defined by the other side: It begins with the reluctance to admit that we have ever discussed the matter of abortion with this candidate, or that she has any settled views on the subject. In other words, it begins with the premise that the right to abortion is firmly anchored as an orthodoxy; that those who would question it are unwilling to admit in public that they bear any such threatening doubts. The willingness to accept premises of that kind, as the framework for confirmation, may account for a Republican party that has brought forth as jurists the team of Stevens, O’Connor, Kennedy, and Souter.If the administration finally comes forth with the name of Edith Jones, that will be taken as the clear sign of a willingness to break from those debilitating premises that signal, in advance, the eagerness to back away from an argument. But on the other hand, 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...

About Timing[Kathryn Jean Lopez 07/19 01:16 PM]
In all seriousness: I like that the president is making the first SCOTUS announcement a primetime event. Whether or not people watch, it is that important.

It's a Grand Tradition[Kathryn Jean Lopez 07/19 01:15 PM]
I'd bet it's not Clement just because we're all talking about her. Of course, I said the same thing about Cardinal Ratzinger and the papacy in the moments while we were waiting for the smoke to clear. Whomever it is, I continue to bet it be someone we'll like. We'll see.

Viewing Clement from the Left[Jonathan Adler 07/19 01:11 PM]

Additional analyses of Judge Clement's record at ACSBLog and NathanNewman.org. Meanwhile, Jack Balkin thinks nominating Clement would be a "shrewd political move" by the President.

re: AP SAYS[Kathryn Jean Lopez 07/19 01:04 PM]
Doesn't the president know some of us have lives (really!)? 9 pm. Isn't that his bedtime anyway?

AP SAYS[KJL 07/19 01:03 PM]
Announcement tonight at 9 p.m.

Would They Bother Telling Bill Frist?[Kathryn Jean Lopez 07/19 12:54 PM]
Fox:
FOX News has learned that Clement has been interviewed by Vice President Dick Cheney, a possible sign that she is the choice for the high court.
Asked whether he expected an announcement, Senate Majority Leader Bill Frist, R-Tenn., said Tuesday, "I don't know, but I don't think so."
White House press secretary Scott McClellan would say only: "The president is closer today than he was yesterday on naming a nominee,"

RE: Clement[Mark R. Levin 07/19 12:27 PM]
As I feared, a thin record. I am sure she will be opposed by the lib-kooks, but so will anyone else.

Today[Kathryn Jean Lopez 07/19 12:22 PM]

What the Washington Post is reporting as of 12:15: "The White House has told allies to be prepared for a Supreme Court nomination as early as this afternoon."

Nan Aron's Wishes[Jonathan Adler 07/19 12:20 PM]
Nan Aron is currently quoted on the Alliance for Justice website urging President Bush to appoint "someone like Justice O’Connor" to the Supreme Court — remember, that's the Justice O'Connor who joined the majority in Lopez, Morrison, Seminole Tribe, and Garrett, who supports the constitutionality of school vouchers, who dissented in Kelo and Raich, who was not particularly friendly to criminal defendants or tort plaintiffs, who opposed the use of numerical quotas in college admissions, and who (despite her pro- Roe holdings) voted to uphold quite a few restricitons on abortion that Aron opposes. Will Aron continue to sing that tune if Bush nominates Clement?