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Bench Memos

NRO’s home for judicial news and analysis.

Hugh Hewitt



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is doing a long night of SCOTUS coverage tonight. You’ll probably be hearing Adler and Coffin. I’ll be on around 10:30.

Sheesh



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Charles Grassley very irritably just told Wolf Blitzer Grassley is owed the courtesy of hearing the name of the nominee before you little people hear it.

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Not Clement



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Which Woman?



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Just a couple of hours ago, I was convinced that Clement was going to be the pick, based not simply on the popular sentiment, but on a series of conversations I’ve had with people in positions to “know things” over the past few days. But in the last couple of hours, a number of people I trust have expressed that they are now less than convinced, thinking that perhaps Bush will pull a last minute switch. There is even some suggestion that the nominee might not be at the White House when he makes the announcement tonight (which does not make much sense to me, given the prime time spectacle of the thing). There is still some last minute candidate promotion going on, and I note that Judge Alice Batchelder from the Sixth Circuit not only received high praise from Christopher Flannery today on NRO, but that Peter Schramm of the Ashbrook Center likewise has joined the fray in making the case for Batchelder.

Assuming that the mounting speculation is true, and that Clement is not the nominee, I would put my money on Priscilla Owen. She’s got the outside-the-federal-judiciary bona fides that Senator Specter has been crying for, she is from Texas, which raises her stock with Bush, and the leadership was insistent that she be the first judge pushed through after the filibuster logjam was broken, presumably to put her in a position to be elevated when O’Connor retired. Yes, there would be “war,” to quote Chuck Schumer, but the objections raised to Owen were particularly baseless, for reasons set out previously on NRO more than once.

Think Progress on Clement



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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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“This Would Be War”



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John King just now on CNN speculating on Janice Rogers Brown as a “wild card.”

Clement’s Opinions and More



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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?



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Ramesh has two posts you’ll want to read up in The Corner on abortion and Clement.

Charmaine Yoest



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Bait and Switch?!?



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This would certainly set off Washington. I don’t believe it, but it’s an interesting thought.

Prime Time Pick



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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



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Anyone Know Where Janice Rogers Brown Is Right Now?



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The president surely would get the media annoyed if he announced, say, the first black woman SCOTUS justice tonight.

Dems Are Not Being Serious



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John Lott looks at some senatorial suggestions.

Ediths



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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



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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



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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



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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



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Doesn’t the president know some of us have lives (really!)? 9 pm. Isn’t that his bedtime anyway?

AP SAYS



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Announcement tonight at 9 p.m.

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