Speculation is building that George W. Bush will announce his pick to succeed Sandra Day O'Connor any minute now -- and that the name on his lips will be that of current federal appellate judge Edith Clement.
What do we know about Clement? A lot, and yet not so much.
Let's start with the basics. Clement is 57, on the older end of recent Supreme Court nominees. Ruth Bader Ginsburg was 60 when Bill Clinton nominated her to the court, but most recent presidents have preferred to nominate younger judges, the better to preserve their own judicial legacies. Clarence Thomas was in his early 40s when Bush's father nominated him in 1991. Unlike Thomas, who spent most of his career in government before becoming a judge, Clement has spent much of her life in private practice. She attended college at the University of Alabama and law school at Tulane, then spent the better part of two decades representing oil companies, insurance companies and other business clients in civil litigation in New Orleans.
In 1991, George H.W. Bush named her to the U.S. District Court in Louisiana. Ten years later, his son nominated her to the U.S. Court of Appeals for the 5th Circuit, which hears federal appeals arising in Texas, Louisiana and Mississippi. She was confirmed in the U.S. Senate by a vote of 99-0.
While many of the other judges thought to be in contention for the nomination have distinguished themselves -- if that's the word for it -- with controversial statements in speeches or from the bench, Clement has given leaders on the left and the right relatively little they can use to fire up their followers. As Slate recently put it, "She hasn't written anything notable off the bench (or at least nothing that's come to light yet), and most of her judicial decisions have been in relatively routine and uncontroversial cases."
Advocacy groups on the left have had years to prepare for Bush's first Supreme Court nomination, but they've had little to say about Clement in the past. People for the American Way has noted that Clement joined "troubling dissents" in two major 5th Circuit decisions. In one dissenting opinion, Clement joined seven other 5th Circuit judges in arguing that the Hobbs Act, which allows the federal government to prosecute crimes that involve interstate commerce, should be limited on federalism grounds. In another, Clement joined five other 5th Circuit judges in arguing that the majority of the court erred when it held that a teacher's firing had violated her due process rights. PFAW has also pointed to a decision in which Clement, writing for a 2-1 5th Circuit majority, reduced the "pain and suffering" damages awarded to the estate of a mother and a child killed in a car accident.
Whatever the merits of those decisions, they aren't the kinds of cases that are going to attract a lot of public attention or galvanize either support for or opposition to a nominee in the way that decisions on gay rights, abortion or affirmative action might. But that doesn't mean that Clement is a "stealth candidate" à la David Souter. The Washington Post says that lawyers who have had cases before Clement describe her as a judicial conservative. She belongs to the Federalist Society, a conservative legal organization whose members include Antonin Scalia, Clarence Thomas, John Ashcroft and thousands upon thousands of earnest young Republicans.
And in a column earlier this month in the National Review, conservative Amherst professor Hadley Arkes said he can vouch personally for Clement's right-wing bona fides. Although conservatives thought they were getting one of their own in Souter, both he and, to a lesser degree, O'Connor ultimately proved to be disappointments to the right. Arkes says the reverse might happen with Clement. "Edith Clement may be the stealth candidate who, for once, delivers to the other side the jolt of an unwelcome surprise," he said. "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."
That work, of course, is the work of rolling back abortion rights in America. Arkes said he can "guarantee" that Clement would provide the 5th vote needed to reverse Stenberg vs. Carhart, the 2000 decision in which the Supreme Court rejected a ban on late-term, or "partial birth," abortion. Arkes said that a reversal of Stenberg vs. Carhart would "virtually bring to an end the Roe v. Wade regime" by sending a message to state legislatures and lower courts that the Supreme Court is "open for business in sustaining many varieties of restriction on abortion."
The constitutionality of a ban on "partial birth" abortion could be back before the Supreme Court this year; the U.S. Court of Appeals for the 8th Circuit struck down the federal "partial birth" ban earlier this month, and that case -- or others -- addressing the ban will surely get back to the high court. Bush has said he wants his Supreme Court nominee, whoever it may be, confirmed and on the bench when the court's next term begins in October.
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