Bench Memos

NRO’s home for judicial news and analysis.

Asked About Edith Clement


he avoids the issue.

He’s in a good mood, though, even giving a reported who asks about Rove a chance to ask a question worth being asked.

Bush on SCOTUS


As a press conference with John Howard right now, the president’s first question was about the SCOTUS spot and whether or not he wants to appoint a woman. He didn’t say much: “I have thought about a variety of people…” He did say that he will nominate someone “who won’t legislate from the bench.”

“I’ll let you know when I’m ready to tell you who it is.” But where is he in the process? He is “comfortable” about where they are in the choosing “process. “


More Joy


Many Democrats said they want a justice “just like” Sandra Day O’Connor. Well, this critique from People for the American Way suggests Clement is precisely that. These decisions suggest Clement is a) suspicious of expansive assertions of federal regulatory authority, and b) skeptical of high tort claims — both of which were true of Justice O’Connor as well. Indeed, O’Connor was among the most pro-federalism and anti-tort lawyer Justices on the Court.

DKos on Clement


The dKosopedia entry on Joy is here.

Re: Joy?


Here’s the background material the DoJ put together for her nomination to the Fifth Circuit. And here is her SCOTUSBlog profile.


RE: RE: Clement


There is some comfort to be taken in seeing her name on a People for the American Way “Confirmed Judges Confirm Our Worst Fears” list.

RE: Clement


Does anyone actually have some useful information — or can point to useful places that have useful information — on Edith Clement’s judicial philosophy and/or key cases? I must admit, if she’s the nominee, so far as I can tell her record is rather thin.

The Solid SCOTUS Commentary You Came Here For


An e-mail:

What a great name: “joy” and “clement”. Or should we conservatives be worried that “clement” means “inclined to be merciful, lenient”?

I Do Love


That Mary Ann Glendon makes the WashPost chick buzz list in that Clement piece.

The Clement Buzz


Here’s the Washington Post’s latest.

If I Were A Betting Woman?


The Left’s Answer...


…to Bench Memos? Brought to you by the Center for American Progress, John Podesta’s outfit.



Is it Edith Brown “Joy” Clement to replace O’Connor, as K-Lo mentions she’s been hearing? I’ve been telling folks she was the most likely choice for the past ten days or so (once it started to become clear Gonzales wouldn’t get the nod), and now the rumor mill is in full force behind her, too. This would be a wise choice. Clement is conservative, has substantial experience, would broaden the geographic diversity of the Court (which currently contains no Southerners), and has little in her record that can justify the inevitable screams and hollers from liberal activist groups.

Arlen Specter


was at the White House last night–as if to get the heads up on the WHO?

No Intelligence...


..but I’ve had Harriet Miers on my mind this morning. And from I’m far from the only one, based on conversations–again not based on intelligence, but hunches. There’s the Dick-Cheney-becomes-veep SCOTUS scenario. David Frum was looking in that direction early on.

No Gonzales


Expect an Edith. So suggests The Hill. Clement is the name I keep hearing from many clued in folks, for what it’s worth.

A Byrd Veto?


Major Garrett on Fox News reported tonight that sources inside the Bush
administration’s search for a Supreme Court nominee tell him that there’s a
plan to run several names by Sen. Robert Byrd and seek his pre-approval so
as to forestall any Democratic filibuster threat. It is hard to imagine an
authentic constitutionalist who would be acceptable to Byrd, so I hope
Garrett’s reporting is wrong about this.

Re: The Supreme Court and Foreign Law


Here’s the testimony that I will present at tomorrow’s (Tuesday’s) hearing in the House of Representatives on the Supreme Court’s misuse of foreign law in construing the Constitution. I will focus on the Court’s opinion several months ago in Roper v. Simmons, which relied on international opinion” in support of its ruling that the death penalty constitutes “cruel and unusual punishment” when applied to any murderer who was 17 when he committed the murder. I will also address the remarkably feeble defenses of this practice (e.g., “Well, on this kind of an issue you’re asking a human question, and the Americans are human–and so is everybody else”) offered by Justices Ginsburg and Breyer.

An excerpt:

No Justice has articulated, and there is not, any legitimate basis for the Supreme Court to rely on contemporary foreign laws or decisions in determining the meaning of provisions of the Constitution. Moreover, it is clear that there is no principle that any Justice has devised or will adopt that will explain why it would be proper to look to some contemporary foreign and international legal materials, but not others, to construe the Constitution in some instances but not in others. The six Justices who nonetheless resort to these materials do so because they embrace an essentially lawless–i.e., unconstrained–view of their own role as Justices.

It is no coincidence that it is these same six Justices who have endorsed the vacuous New Age declaration that “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” For that declaration is nothing more than camouflage for the underlying claim by those Justices to have the unconstrained power to define for all Americans which particular interests they think should be beyond the bounds of American citizens to address through legislation.

The Framers established a constitutional structure under which American citizens, within the broad bounds delineated by the Constitution, have the power and responsibility to decide how their own states and communities and the nation should be governed. In their ongoing project to demolish that structure, these six Justices see foreign law as another powerful tool that they can wield whenever it suits them.

It follows that the broader long-term solution to the problem that H. Res. 97 usefully addresses is the confirmation to the Supreme Court of originalist Justices, like Scalia and Thomas, who understand that the Constitution constrains them to construe its provisions in accordance with the meaning they bore at the time they were promulgated and that it does not permit them to impose their own policy preferences on the grand (or minor) questions of the day.

If you’re interested in the hearing, a video webcast should be available here both live (at 4:00 tomorrow) and for some time thereafter.

NYTimes & LaTimes


I didn’t think those editorials were shockingly similar. Note, for example, that the NYTimes edit complains about the rejection of pragmatism, while the LATimes edit gently distances itself from pragmatism. I think the LA Times editorial was far and away superior to the NY Times, which tries to accomplish rather more than can be done with scary adjectives such as “far right” and “frightening.” Depending on the definitions of the terms the L.A. Times uses–such as “activist” and “strict constructionist”–I’d even go so far as to say that the L.A. Times’s editorial is basically correct.

Taylor Contra Gonzales


The National Journal’s Stuart Taylor gives five reasons Alberto Gonzales should not be nominated to the Supreme Court.


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