Private: Who is Edith Clement?

Edith "Joy" Brown Clement, was born in 1948. She graduate from Tulane Law School and went to undergraduate school at the University of Alabama. After graduating from law school she clerked for Judge Herbert W. Christenberry for Eastern District of Louisiana. She then entered private practice working with New Orleans firm Jones, Walker, Waechter, Poitevent, Carrere & Denegre. There she specialized in maritime and insurance defense litigation. In 1979, Clement was named partner. US News Reports that her "colleagues in the legal community say she was an excellent, tough lawyer who could be taken at her word."

Nominated in September of 2001 by President George W. Bush, Edith Clement has served on the Fifth Circuit Court of Appeals since November 13, 2001. Edith Clement has also served on the U.S. District Court for the Eastern District of Louisiana for 10 years, including a brief stint as the chief of that Court. She is a member of the Maritime Law Association of the United States, the American Law Institute, and the Federalist Society.
Edith Clement is considered to be a constructionalist and a federalist. Entries in the Almanac of the Federal Judiciary (Volume 2, 2005 Supplement) suggest that Judge Clement is intelligent, diligent, and professional: "She is a good judge - intelligent, thorough, and prepared;" "A stickler for professionalism;" and "She leans towards civil defendants." Her decisions on civil matters were generally thought to be conservative and pro-defense. In criminal matters she is considered to be fair, but pro-prosecution. "She gives a fair trial, but she is pro-government."
Clement was rumored to be at top of the short list to replace Justice O'Connor the first time around, but the administration selected then Judge John Roberts. Reports suggest that she did not ultimately receive the nomination because some on the right consider her "more moderate than Roberts." The Democrats, in a private memo, acknowledge that it would be" difficult to discern a strict hard-right ideology" in Clement. Hadley Arkes of the National review said of Clement,

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.
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.

On Judicial Activism:Judge Clement is thought to be a strict constructionalist. She also appears to be a believer in the principle of staire decisis. During her senate confirmation hearings in 2001 she stated that as a Judge she would be bound by the precedent of the Supreme Court and other courts, as well as the text of any legislation before the court. She told the Senate committee, "What I believe is that when legislation is proposed and passed and becomes statutory that there is a presumption of constitutionality. And to the extent, the statute should be upheld and the Constitution should be enforced."Since then Judge Clement has demonstrated her deference to Supreme Court decisions. In Hearn v. Dretke, Judge Clement wrote the majority opinion that granted a prisoner assistance of counsel for a second hearing because of a Supreme Court case which had been decided subsequent to his original hearing. Judge Clement's opinion stated that the decision was based, not on a general principle of judicial philosophy, but on the timing of the relevant decisions in the cases involved.
Concerning the Right to Privacy:During her Senate Confirmation hearing, Judge Clement supported a Constitutional right to privacy, and stated that a statute that fails to guarantee due process and privacy should be considered seriously by the Judiciary. She links the right to privacy with the First and Fourth Amendments stating that the First provides privacy in making personal decisions without government interference, while the Fourth provides privacy in the sanctity of the home.
On the issue of Reproductive Rights:Judge Clement also supported reproductive rights during her confirmation hearing stating that they were an existing out-growth of the right to privacy. Specifically she answered a follow-up question by Senator Edward Kennedy with the following statement: "The Supreme Court has clearly held that the right to privacy guaranteed by the Constitution includes the right to have an abortion. The cases handed down by the Supreme Court on the right to abortion have reaffirmed and redefined this right, and the law is settled in that regard. If confirmed, I will faithfully apply Supreme Court precedent."
Judge Clement on the Endangered Species Act:Clement agreed with the dissenting opinion in GDF Realty Investments, Ltd. v. Norton, writing that a rare species of underground bug is not protected by the Endangered Species Act since the preservation of this endangered species was not connected with "any sort of commerce, whether tourism, scientific research, or agricultural markets."
On the incarceration of terror suspects:As stated above Edith Clement has expressed an opinion that legislation enacted by the Congress will be presumed to be Constitutional, and she has stated that an preventive detention could also be valid, but that the detention should be set forth with care: "preventive detention should be set forth with some particularity."
On Interstate Commerce:In United States v. McFarland, Clement voted overturn conviction of a defendant who had been convicted of armed robbery of four different convenience stores under the Hobbs Act, which makes it a federal crime to "in any way or degree" to obstruct, delay, or affect "commerce or the movement of any article or commodity in commerce, by robbery or extortion . . . ." The act is considered essential in protecting interstate commerce. Judge Clement joined the dissent that argued that "within the scope of the Commerce Clause the proscription of local violent (and other) crimes not constituting the regulation of commercial activity . . ." Clement also joined a second, unique dissent written by Judge Edith Jones that criticized the majority. The eight judges who had voted to affirm the defendant's conviction did not write an opinion supporting their decision. Clement and the other dissenters argued that the majority was "withdraw[ing] from the field of reasoned dispute" and "default[ing] their duties of public explication, accountability and transparency."
On Due Process:In Coggin v. Longview Independent School District, a public school teacher was fired without the required hearing. The district ruled that the firing was a violation of the teacher's due process rights, and the 5th Circuit agreed. Judge Clement joined the dissent that argued the case should have been brought in state court, since it was a Texas state law that required the teacher be granted a hearing. The People for the American Way opined that, [h]ad the view of the dissenters, including Clement, prevailed, the teacher would not have been given relief from the unlawful termination of his contract.
On Damages for Wrongful Death:Judge Clement wrote the majority opinion in Vogler v. Blackmore that reduced and vacated damages awarded to the estate of a mother and daughter for pain and suffering who were killed in truck accident. A jury held the truck company and driver liable for the accident by a jury and damages were awarded that included $200,000 to each estate for their pain and mental anguish prior to death. The majority reversed the award to the daughter's estate because no evidence was presented of her "awareness of the impending collision." The court also lowered the award to the mother's estate to $30,000 because "none of the factually-similar cases in this Circuit" involved such an "extensive" award.