Bench Memos

NRO’s home for judicial news and analysis.

What If It Were Ashcroft? Pryor?


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

Charmaine Yoest



Bait and Switch?!?


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

Prime Time Pick


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



Anyone Know Where Janice Rogers Brown Is Right Now?


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

Dems Are Not Being Serious


John Lott looks at some senatorial suggestions.



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 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


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


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


Additional analyses of Judge Clement’s record at ACSBLog and Meanwhile, Jack Balkin thinks nominating Clement would be a “shrewd political move” by the President.



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



Announcement tonight at 9 p.m.

Would They Bother Telling Bill Frist?



FOX News has learned that Clement has been interviewed by Vice President Dick Cheney, a possible sign that she is the choice for the high court.

Asked whether he expected an announcement, Senate Majority Leader Bill Frist, R-Tenn., said Tuesday, “I don’t know, but I don’t think so.”

White House press secretary Scott McClellan would say only: “The president is closer today than he was yesterday on naming a nominee,”

RE: Clement


As I feared, a thin record. I am sure she will be opposed by the lib-kooks, but so will anyone else.



What the Washington Post is reporting as of 12:15: “The White House has told allies to be prepared for a Supreme Court nomination as early as this afternoon.”

Nan Aron’s Wishes


Nan Aron is currently quoted on the Alliance for Justice website urging President Bush to appoint “someone like Justice O’Connor” to the Supreme Court — remember, that’s the Justice O’Connor who joined the majority in Lopez, Morrison, Seminole Tribe, and Garrett, who supports the constitutionality of school vouchers, who dissented in Kelo and Raich, who was not particularly friendly to criminal defendants or tort plaintiffs, who opposed the use of numerical quotas in college admissions, and who (despite her pro- Roe holdings) voted to uphold quite a few restricitons on abortion that Aron opposes. Will Aron continue to sing that tune if Bush nominates Clement?

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.


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