July 19, 2005

Private: Who is Edith Brown Clement?

Rumors are flying in Washington that President Bush will nominate Judge Edith Brown Clement of the 5th Circuit to the seat being vacated by Justice O'Connor at 4pm today. Judge Clement was appointed by the President's father to the Eastern District of Louisiana in 1991, and was elevated to the Court of Appeals in 2001. She is a 1972 graduate of Tulane Law School, and an active member of the Federalist Society.

  • Judge Clement and "Junkets for Judges":Judge Clement is one of several federal judges who has previously attended the so called "Junkets for Judges", retreats. These retreats, which were sponsored and paid for by the "free market" Foundation for Research on Economics and the Environment, cost as as much as $7,367 per judge, and included travel, lodging and recreation at luxury resorts, in addition to seminars conducted by pro-business organizations.
  • Judge Clement and Federalism: In two cases, Judge Clement voted to restrict the powers of Congress far beyond the boundries placed on it by the current Supreme Court. In U.S. v. McFarland, 311 F.3d 376 (5th Cir. 2002), Judge Clement joined dissents which would have held the federal Hobbs Act unconstitutional as applied to robberies of local retail stores. Similarly, in GDF Realty Investments v. Norton, 362 F.3d 286 (5th Cir. 2004), Judge Clement would have held the Endangered Species Act unconstitutional as applied to a land development which threatened to destroy the habitat of six different endangered species. These opinions likely place Judge Clement to the right of Justice Antonin Scalia, who, in an opinion concurring in the judgment in Gonzales v. Raich, wrote that "Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce," so long as they are "necessary to make a regulation of interstate commerce effective."
  • Judge Clement and Minority Rights:In In re Monumental Life Insurance, 343 F.3d 331 (5th Cir. 2003), Judge Clement wrote a dissent which would have denied class certification to a class of African-Americans who alleged that 280 insurance companies charged black customers more than whites for identical policies. The majority criticized Judge Clement's dissent as "circular," "novel" and "unsupported by case law."
  • Judge Clement on Choice: During Clement's confirmation hearings for the Fifth Circuit, the following exchange occurred:

    Do you believe the constitutional right to privacy encompasses a woman's right to have an abortion?
    Answer: 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.

    This response indicates Judge Clement's understanding that a lower court judge is bound by binding Supreme Court precedent. Conservative activists are suggesting, however, that Clement is socially conservative at least on issues currently before the Court, and is likely to vote to overturn Roe.

This list is by no means exhaustive, but we hope it will help our readers in better understanding Judge Clement's qualifications for the Supreme Court should she be nominated by President Bush.
UPDATE, 12:32pm, by Ian: Nathan Newman has more.
UPDATE #2, 1:10pm, by Ian: MSNBC is now reporting that Bush will annouce his nomination at 9PM.