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July 11, 2005

A Vote For Edith -- Or Edith

It is an interesting coincidence that two of the judges mentioned as likely successors to Justice Sandra Day O'Connor are women named Edith who currently serve on the Fifth Circuit Court. They are Judge Edith Hollan Jones and Judge Edith Brown Clement. Professor Hadley Arkes comments on the merits of these two fine candidates.

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

In other words, Judge Jones would be a candidate with a clearly defined philosophy who would be a direct challenge to those on the lLeft who do not want a "conservative extremist" (as defined by the Left, meaning not a supporter of Roe), while Judge Clement would be an easier candidate to get by the Left but might be a more difficult candidate to sell to the Right because of her lack of a clear public position on the issue of abortion.

Professor Arkes also points out that there is an additional, symbolic reason for replacing O'Connor with a conservative woman.

When the Court begins to explain again the grounds for protecting children in the womb, that account may produce a more lasting resonance if the explanation comes from a woman. At the same time, we could only run the risk of feeding the worst clichés in our politics if the only woman on the Court was Ruth Ginsberg, and if the Voice of the Woman on the Court spoke only in the accents of the Left. The commentators who have been clamoring these days for “balance” on the Court have not exactly been clamoring for a balance between women. And yet it would be no descent into a low politics to show that a woman’s perspective may express itself in an attachment to the moral tradition and to a conservative jurisprudence.

I agree. To let an ultra-liberal former ACLU attorney be perceived as the "voice of women" on the court is a political mistake. Worry about making that precedent setting appointment of a Hispanic later -- select a good conservative woman now. And I'll be happy to take either Edith.



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Comments on A Vote For Edith -- Or Edith

Interesting that both these comments supporting the two Ediths were made by MEN. One attribute that Ruth Bader Ginsberg has that makes her a far more fit representative for women is that she is a WOMAN. Frankly, although I am Liberal, by that I mean that I believe in freedom and equality, qualities that most Conservatives hold in very low regard, I will find it interesting if a future Supreme Court overthrows Roe V. Wade. There will be blood on the tracks and women will be flocking to the Democratic and Liberal party in droves.

|| Posted by mark esposito, July 14, 2005 10:52 AM ||

Oh, that's right.

Every woman in America is a flaming brainless liberal who supports abortion. Never mind that every survey ever taken has shown that men are more supportive of abortion than men -- because it allows men to engage in irresponsible sex that can be dealt with via n ATM withdrawl down the block from the nearest "Women's Health Clinic."

I've always loved it when disagreement with a liberal is used as grounds to deny a woman her statusas a woman, or a minority their status as part of their race or ethnic group. That is the ultimate in intolerant bigotry and a rejection of the "freedom and equality" that you Leftists allegedly stand for.

The GOP stands for equality and freedom -- the Democrats for special treatment and enslavement to the all-powerful government. All the lie-beral claims to the contrary cannot obscure that reality.

|| Posted by Rhymes With Right, July 14, 2005 12:59 PM ||

The GOP stands for equality and freedom -- the Democrats for special treatment and enslavement to the all-powerful government.

How do you expect anyone to take you seriously, liberal or conservative, with such nonsensical dribble? That statement means absolutely nothing. You can't prove it, you can't disprove it and in the end it's just a bunch of empty rhetoric.

Thanks for the article though as I was looking for info on Clement and found this through google.

|| Posted by Planet B, July 19, 2005 11:56 AM ||

I don't know ANY women that support abortion. I do know scores of women, however, that support being able to make their own medical decisions.

|| Posted by Turning Left, July 19, 2005 12:48 PM ||

I think that all the over the top diatribe and nonsense uttered by those self appointed guardians of "morals" and "values" on the right will ultimately lead to the defeat of the GOP at Congressional and Presidential level and see the Democrats return to majority status in the not too distant future.

The much deserved backlash against these religious right fanatics began with their Terri Schiavo antics, and add to this their current demands that such things as homophobia and anti-choice be litmus tests for shrub's appointment to the Supreme Court and you have all the makings of self destruction - right wing wacko style.

Not that these christian fundamentalists ever represented a majority anyway. They are just very loud and well organized.

Even Bush, who most voters now disapprove of on every front, had to tell his minions to turn down the rhetoric! lol

Like planet B, I too came across this after doing a google search for Clement. I don't normally post on obscure right-wing sites.

|| Posted by Politico, July 19, 2005 12:53 PM ||

for Politico: who is louder and more well-organized? The respectful rhetoric on this site, or the completely disrespectful and hateful rhetoric of you and the rest of the liberals. Whose anger is on tv all the time? Let's just realize that it is yours, not ours. The only Christians who get on tv are the ones that are ridiculous enough to disregard-- the Al Sharptons of Christianity.

|| Posted by a question, July 19, 2005 01:15 PM ||

How come I always find these fanatical pages about how we live in a Christian society and if you believe anything else you are a, shall I dare say "Infidel?''
All of this Right Wing banter sounds so oddly familiar. If you are so proud of this country, than embrace the philosophy that our constitution protects. We are all immigrants who deserve the same rights. Rights protected by our citizenship, not who we are personally.
The Republicans were the liberal party at one time. Remember that when you are out at night gay bashing.

|| Posted by Lefty, July 19, 2005 01:27 PM ||

I was just wondering if "a question" was serious. Angry liberals is what I hear blaring through my moring radio (one of 7,000 right wing talk shows)? I could have sworn it was angry right wing christians complaining about how christians are being persecuted by not being allowed to force their views on everyone. I can't remember a single time christian have been persecuted since the founding of this nation. Christians are the ones seeking "special treatment."

|| Posted by a question or joke, July 19, 2005 01:35 PM ||

All of you are foolish if you buy into the ruse that the issue is left or right conservative or liberal it does not matter who is in power we were sold down the river many years ago and whoever is in power will continue to solidify the power of the state because that is the real agenda we have been taken in on both sides wake up

|| Posted by rick, July 19, 2005 01:47 PM ||

This whole debate is silly. Both sides are always pointing at the other and saying that THEY are the reason to blame for America's ills, but what's really to blame is the process; every decision is now shot though a PR machine that forces decisions to be made, and stuck to, within hours of origin. There's no reasoned debate, just shouting and name-calling on TV talk shows. If you're looking for the answer to why the country is a mess, look no further than the process. And for a good example of it, look at what people have written here today.

|| Posted by Rob, July 19, 2005 02:11 PM ||

I only hope the eventual nominee knows when to intervene and when to hold her/his cards and decline to rule at all. Federal courts are too involved in state matters already.
Let's start off by clearing the air. I'm a white male, Christian, Iraq war vet (Army reservist), forty-something from a state that hasn't voted for a Dem in a national election since 1964 (Virginia).
Now that the libs out there in blog-land are really drooling, I know I have your attention. Here goes.
I personally disagree with the Roe decision. It is less for me about the individual issue than it is about a trend I've seen for decades in the federal courts. More and more, judges liberal and conservative have applied a one-size-fits-all precedent in their jurisdictions (which reach over state lines) in far too many areas that are constitutionally reserved for the states. The Roe decision is just one that is getting the most attention.
This is because interest groups running both directions of the political spectrum don't have the money, support or the patience to push for change in 50 separate state legislatures, so they push to get their cases on a federal docket as early on as possible (ever wonder where the term "Hey, don't make a federal case out of it" came from?) in the hopes of getting a more far-reaching decision.
I just hope that the eventual nominee would join the conservative wing in exercising a little more restraint in becoming involved in cases that are constitutionally reserved for the states to decide. That's what I hope will eventually happen with a lot of cases, old and new. The Court's error (in my opinion) in Roe was that it made a national precedent out of what should have been a ruling on the legality of one state's law. They did it again recently in the Kelo decision.
The individual state legislatures are the places to decide these type of issues, because the legislators at that level are more accountable to their constituents. I'll bet most of you out there know your state representatives much better than your congressional representatives. That's why.
All the concern over the ideology of one person on one court shows how much the judicial branch's power has grown out of proportion to the other branches in the last several decades.
People of all political persuasions who want honest reform in the judicial system should be hoping for more restraint and less opinion from future nominees to any federal judgeship. That way, the states can begin to regain some of the relevancy taken from them by the federal courts over the years.

|| Posted by Tim Curtin, July 19, 2005 02:24 PM ||

Oh please...

Tonight Bush goes nation-wide on the "liberal media" for his announcement - and he hopes it takes some heat off of his guilty right-hand man Karl.

"Bush, who campaigned as a straight shooter with promises to "uphold the honor and dignity of the White House," this shifting stance on who may be held accountable for a controversy that has consumed the capital reveals how politically sensitive a special prosecutor's investigation of the CIA leak is becoming for Bush."

And "LIBERAL" Media??

Certain neoconservatives, such as Irving Kristol, have said that the charge of "liberal bias" has been exaggerated for rhetorical purposes.

Eric Alterman, author of What Liberal Media? The Truth About Bias and the News is one of those who argues against any significant liberal bias. Reviewer John Moe sums up Alterman's views:

"The conservatives in the newspapers, television, talk radio, and the Republican party are lying about liberal bias and repeating the same lies long enough that they've taken on a patina of truth. Further, the perception of such a bias has cowed many media outlets into presenting more conservative opinions to counterbalance a bias, which does not, in fact, exist."

I agree... WAKE UP AMERICA!! Oh yes, please do so BEFORE your REAL ID is issued...

|| Posted by GOPisnotGOD, July 19, 2005 02:43 PM ||

Before descending into the pit of ideological warfare it might be useful to consider Judge Clements abilities when determining whether she ought to join the highest court in the land.

Her accademic achievements are unimpressive; neither the University of Alabama undergraduate program, nor Tulane Law School are close to being generally considered among the top schools. Tulane focuses on Louisiana law which is unique in the United States, being based on the French Napoleonic Code, rather than on English common law, as is the law of the other states. Her specialty as a practitioner was in maritime law--a rather arcane area of law that does little to provide the broad base of experience in multiple facets of the law that is most useful to a Supreme Court justice.

One site I visited in trying to learn something of her background cited a 5th Circuit case for which she wrote the majority opinion. The case involved a automobile-truck collision which resulted in the death of a mother and three year-old child. Despite the jury having returned a judgment of $200,000 for the pre-death pain and suffering of each victim, a verdict that was sustained by the trial judge, Judge Clements reversed the verdict substituting her own valuation of the mother's suffering at $30,000, and eliminating any award for the suffering of the daughter. Judge Clements arrived at the number for the mother by adding 50% to what had been found by another jury in an unrelated automobile case in the same state. She substituted her own factual findings for that of the judge and jury who had listened to days of trial testimony and found that a three year-old child could not reasonably be found to have appreciated the imminent danger, and therefore could not possibly have suffered. There was a strong disenting opinion in the case which made a compelling contrary argument.

Until somebody decides to change what has been the American form of government for more than 200 years, justices of the Supreme Court are going to be determining whether laws passed by legislatures and signed by the executive branch are or are not compatible with the Constitution. It is better to have these decisions made by the most intelligent, experienced and wise jurists we can find, rather than to depend upon ideologues of lesser abilities.

Judge Clement, however qualified she may be to sit on the Court of Appeals, does not appear to be the best judicial mind our country has to offer, and neither ease of confirmation, diversity, nor expected idealogical bent should be accepted as superior criteria to intelligence, experience and wisdom.

|| Posted by Spitfire, July 19, 2005 03:12 PM ||

Re Judge Clement: As a "strict constructionalist" myself, I've been looking forward to a winning nomination that would infuriate the left. (I've always believed Judge Bork should be among the Supremes.) But on reconsideration, maybe Judge Clement is an OK choice. But it will take a long time before we conservatives are convinced she will not act like just another middle-roader.

|| Posted by John, July 19, 2005 03:14 PM ||

Come'on! Eric Alterman? Puhlease....

This is nothing but Democratic McCarthyism out shouting the Sky is Falling! Let's put a different spin on it, shall we?

"The liberals in the newspapers, television, talk radio and the Democratic Party are lying about the Conservative bias (on Fox) and repeating the same lies long enough(on MSNBC, NBC, CBS, ABC and CNN)that they have taken on a patina of truth. Further, the perception of such a bias has cowed many media outlets into presenting more liberal opinions (how many conservative opinions exist on MSNBC?)to counterbalance a bias, which does not, in fact exist."
You heard it plagurized hear first! Call me a liberal and smack my Momma! Yeehaaaaa!(insert Dean Scream here)

|| Posted by DNCistheDEVIL, July 19, 2005 03:34 PM ||

To the fella from VA....if men could get pregnant, abortion would be legal, ethical, and federally funded...

Hey if you don't like abortions, why not do your part and 'tie it in a knot.'

Don't you understand the concept of FREEDOM? How can a woman be free if this country insists on Compulsory Motherhood? THINK.

|| Posted by map, July 19, 2005 04:00 PM ||

If you don't believe in a right to privacy, then you believe that cases going back much further than Roe have been incorrectly decided. Do you really believe that Gates and other such cases recognizing the fundamental freedoms of doing such things as buying birth control should be subject to legislative whim? I am a conservative in many areas, a liberal in others, but basic freedom of the individual from governmental or majority tyranny is a premise of our system.

|| Posted by Brian Bates, July 19, 2005 04:28 PM ||

To DNC is the DEVIL:

There's this thing called personal responsibility - maybe you've heard of it. If I get pregnant, it's because I chose to have sex. I am willing to take responsibility for my decisions, and a liberal definition of "freedom" does not change the fact that I am responsible for my own actions. Luckily for us, the government will even take some responsibility for our screw-ups, by sponsoring us through welfare, medicaid, enforcing child support, etc. Babies can even be put up for adoption if the mother feels that she isn't ready to raise a child!!!

Even with all of this help and support in the community, some people feel that they shouldn't have to live with the consequences of their actions. These people (liberals) feel that their physical and emotional comfort is worth more than the LIFE of another human being, and therefore are able to legally murder babies. Why anyone would want to do something like this is unthinkable, and the fact that it has actually become legal really says something about the moral fortitude of our society.

It is a conservative's duty to speak up about injustices like these that plague our society, and I'm sorry that you feel the way you do. I sincerely hope that you take the time to re-think your stance.

|| Posted by Katie, July 19, 2005 04:54 PM ||

Only Judges that protect our individual right to marry who we want, whether they be same sex or opposite sex, should be allowed to serve on the Supreme Court

|| Posted by Beautiful Eyes, July 19, 2005 05:03 PM ||

To Katie,

Well, in your personal responsibility citation you might have just overlooked the cases of pregnancy resulting from rape or other non-consensual activity (relations with a minor, for example), or the failure of usually reliable contraceptive methods. In that case, wouldn't you agree that the personally responsible behavior might be to ensure that a completely unwanted pregnancy doesn't come to term, thereby putting a new member into the population of unwanted children? Certainly you could agree that there is such a population?

As to adoption as a path, what about the (unearned, unwanted) nine months of pregnancy, plus the risks associated with that and giving birth, again as a result of no choice on the part of the woman experiencing these processes?

Life's never really simple, even for conservatives, is it?

|| Posted by jwl, July 19, 2005 05:19 PM ||

It does seem simple. If you beleive abortion is the act of ending a human life, to avoid being a hypocrate you must oppose abortion in all circumstances except when the mother's life is endangered. I never understood "except rape or inccest." That is saying that you belive that a woman's stress and the unbearable thought of birthing her rapists child is a valid reason to take the life of a third party (the baby/fetus).

If it is not a human life, if that is what you believe, it seems you would be valid in being pro-choice/pro-abortion

|| Posted by Beautiful Eyes, July 19, 2005 05:36 PM ||

To you strict constructionists out there that think Roe was wrongly decided. I also think so, but for different reason. While there was precedent relating to the contraception and privacy, there was no precendent to give rights to the unborn. If you federalist society lawyers are looking for judicial activism it was in the decision to allow for rights upon viability.

In the united states a person is a citizen when the are BORN or naturalized. Taking both the strict constructionist view and the original intent arguments that our two worst judges like to pretend to advocate, that would mean that the constitution and the original intent of the drafters believed life to begin at BIRTH. Jefferson actually drafted the first naturalization act which used the phrases native born and natural born to define citizenship. The fourteenth amendment notes that all persons BORN or naturalised are citizens of these united states.

Just some food for thought.

|| Posted by Rex Lex, July 19, 2005 05:42 PM ||

Katie, you read me wrong there. My previous post was a parody of GOPisnotGOD's post. I have fathered 5 children and all are precious. Even the ones that did not make it from being born prematurely.
I believe that all this abortion nonsense is nothing but 1)a political card for the Demmy's as they just plainly need a vote, and 2) a woman's right to orgasm without the risk of getting pregnant. ("I mean really, MEN can do it, why can't we?")

That is the main argument. You can't tell women what to do with their bodies but we can let them murder their children. Amazing world we live in.

|| Posted by DNCistheDEVIL, July 20, 2005 12:04 PM ||
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