Bench Memos

The Runner-Up

Robert Novak reports today that President Bush in fact did come close to nominating Judge Edith Brown Clement to replace Justice O’Connor:

Mentioning the little-known Judge Edith Brown Clement as front-runner for the Supreme Court vacancy was not a ploy to obscure the eventual selection of Judge John Roberts. She was the real runner-up, after evoking mixed reviews from conservatives.

President Bush was very much impressed with Clement during his interview with her, and sources say he gave her a White House tour. However, anti-abortion activists were not happy, contending that she has no record on their issue. Clement’s supporters say she is very well thought of by conservative Justice Antonin Scalia and that she would follow his lead on the court. Princeton Professor Robert P. George, a social conservative and prominent Catholic layman, is a strong Clement backer who vouched for her.

Given Bush’s early inclination to replace retiring Justice Sandra Day O’Connor with another woman, the reason why he passed over Clement is not clear. Sources close to the selection process speculate that the president may have suspected that Clement’s supporters were too vocal in publicly promoting her.

This will only fuel speculation that she’ll be nominated if there’s another retirement.

Jonathan H. Adler is the Johan Verhiej Memorial Professor of Law and Director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law.

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