Do We Have The Right Edith?

Edith Clement May Be Red Herring

Is 5th circuit appelate judge Edith Clement a red herring? I would say yes.

An examination of Robert Bork's doomed nomination in 1987 one week ago in the Washington Post would point to Clement being no more than a trial balloon.

A major point is the apparent haunting of Bork's failed nomination nearly twenty years ago.

We're not going to be caught flat-footed like we were with Bork," said a senior administration official who is not authorized to speak publicly on the matter.

Edwin Meese III, a veteran of the Bork battle as Reagan's attorney general and a key adviser to the current White House on court strategy, said Bush must not let his nominee be introduced to the American public by the other side. "One of the key things is not to let the left-wingers like Teddy Kennedy identify the nominee but to get the facts out to the public right away," Meese said, referring to the Democratic senator from Massachusetts.

C. Boyden Gray, a former White House counsel who founded the Committee for Justice at the behest of the president's aides, agreed: "Conservatives didn't have anything to say. There weren't any outside groups. There was no network help to support him. That's the biggest lesson. That's why we were asked to get started."

The fact that Republicans are still seething from the Bork defeat is very important. It was one of the watershed events that altered the way the GOP handlers approach governance. Because of the Bork defeat strategist like Karl Rove have built an industrial complex of talking points and surrogates at the ready, at a moments notice, for any conservative cause.

For that reason it is unlikely that the Bush administration has offered up a preview of its nominee so early in the day so Kennedy and other liberal senators can create a great deal of negative momentum. Salon.com's Tim Grieve mentioned Bush should be cognizant of the news cycle in their blog, War Room:

Bork was branded out of the box, and the Senate ultimately rejected his nomination, 58-42. Bush doesn't want that to happen again, obviously, and naming his nominee at the end of the day may help prevent it. While Democrats can still get a few shots in before newspaper reporters run up against their deadlines tonight, they can't build up a day's worth of complaints in just a few minutes.

The possible nomination of Clement based on conservative credentials and, most importantly her pro-life beliefs, would make the Christian right nervous. This was her answer to the abortion question during her confirmation hearings for the appelate seat in 2001:

The Supreme Court has clearly held that the right to privacy guaranteed by the Constitution includes the right to have an abortion. The cases handed down by the Supreme Court on the right to abortion have reaffirmed and redefined this right, and the law is settled in that regard. If confirmed, I will faithfully apply Supreme Court precedent.

This, of course, is what you would expect from a possible jurist attempting to toe the middle ground; but any wavering from an absolute pro-life agenda makes the ultra-conservatives incredibly antsy. For those who imagine a mandate, albeit by two million votes from the last Presidential election, being anywhere from a certainty to the core belief is highly unsatisfactory.

Hadley Arkes from the National Review wonders whether Edith Clement may be a stealth nominee with no known beliefs on hot-button issues like abortion and the death penalty; much like conservative jurist Anthony Kennedy and David Souter who surprised conservatives by "evolving" on the bench towards the middle. Arkes also wonders whether we're talking about the right Edith. Edith Jones, also on the 5th circuit court, is an affirmed pro-lifer and proponent of accelerating the death penalty processs, is more prone to be a pick that Bush could, in effect, thumb his nose at any hint of compromise with Democrats and the majority of Americans beliefs.

I would vouch for [Edith] Joy Clement myself, and I would vouch for Edith Jones. But as I commend [Edith] 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.

Whoever Bush's pick is tonight, it's most likely that he nominate a women with clear conservative views on abortion and, secondly, the death penalty.