Think Progress on Clement

by Jonathan H. Adler

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.

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