July 19, 2005


Bush to Name Supreme Court Nominee Tonight (James Gerstenzang, July 19, 2005, LA Times)

President Bush tonight is expected to name his pick to replace Sandra Day O'Connor on the U.S. Supreme Court.

White House spokesman Scott McClellan said Bush will name his choice at 9 p.m. EDT.

McClellan did not name the successor, but there has been intense speculation that the president would name a woman to replace O'Connor, the first woman on the high court.

Among the candidates most often mentioned is Judge Edith Clement of the U.S. Court of Appeals in New Orleans.

Folks are playing the Clement notion hard, which, given this White House's past performance, would suggest it's not her.

Bush to Introduce Court Nominee Tonight (DEB RIECHMANN, 7/19/05, Associated Press)

Though Washington was abuzz with speculation about Clement, the president ignored a question about what he thought of her.

"I guess the best way to say it is, I'll let you know when I'm ready to tell you who it is," the president said. He jokingly acknowledged that he was trying to dodge the question.

"I'm comfortable with where we are in the process," the president said. He said he has considered a variety of people from different walks of life, some of whom he knew before and some he had never met.

"I do have an obligation to think about people from different backgrounds that have shared the same philosophy, people who will not legislate from the bench," Bush said. He spoke at a press conference with visiting Australian Prime Minister John Howard.

At Clement's office in New Orleans, a man who identified himself as a law clerk said the judge was not available. "That's what I've been instructed to say," he told a caller who asked if she were in Washington.

In anticipation of a selection, officials said the White House had contacted selected Republican senators they hoped would serve as advocates for the nominee in media interviews in the initial time following an announcement. Democrats scoured the rulings and writings of leading contenders, including Clement, a 57-year-old jurist who was confirmed on a 99-0 vote by the Senate when she was elevated to the appeals court in 2001.

Theodore Olson and Edith Jones: As Washington convulses over Senate approval of judicial nominations, we talk law and judges with two of America's top legal figures: federal judge Edith Jones, and former solicitor general Theodore Olson. (The American Enterprise)
TAE: Moral values are important to you. What do you think is the best way to teach them to children?

JONES: I think religion is the best way. If you are responsible to God, no matter what religion you are in, you learn moral standards that transcend the dictates of the law. You show your kids fundamentally what is right or wrong.

TAE: Should tort reform help curb frivolous lawsuits?

JONES: I think that is a very important goal. There was a recent $900 judgment against two teenagers in a Colorado suburb who baked cookies and dropped them off on the doorsteps of their neighbors at night out of sheer kindness. One of the neighbors claimed she got so frightened that there were intruders at her door that she had to go to the hospital the next day. And she sued these girls. Now, if that's not a sign of a system in distress, I don't know what is.

TAE: What are your thoughts on today's process for confirming federal judges?

JONES: It has deteriorated into trench warfare. There doesn't seem to be any rhyme or reason in the strategy used by Democrats to oppose Republican nominees. The process has become absurdly destructive of people's character, and destructive of the public's view of the judiciary. Every time I think it can't get any worse, it does. The process is so contentious and unpleasant now that a lot of very fine people are discouraged from even attempting to apply. I believe that is part of the strategy of the opposition at this point.

Nominees are accused very unfairly of things that they didn't do. For someone like Judge Pickering to be called a racist is a vile lie. For someone like Judge Pryor to be attacked on the basis that he is a Catholic and therefore cannot judge cases fairly strikes at the heart of the notion of religious tolerance in our society. And the character assassination of Priscilla Owen reached unconscionable bounds.

TAE: What is the solution?

JONES: I do not see a real solution in the short term. The ultimate reason why the process is broken, in my view, is because the judiciary has gotten itself too enmeshed in making political judgments. Therefore the confirmation process, as Justice Scalia has pointed out, has become very similar to a political campaign. Until the judiciary rights its approach--until judges go back to interpreting law rather than making law and moral standards--I don't see the process becoming significantly less abrasive.

TAE: What is the best way for a judge to handle cases, following your rule?

JONES: I would start with the statement from "The Federalist Papers" that the judiciary is intended to be the least dangerous branch. My friend Professor Gary MacDowell points out that there aren't even any qualifications for judges in the Constitution. Moreover, the amount of debate the Constitutional Convention devoted to the subject of the judiciary was extremely limited. So it is highly odd that the judiciary should end up being the final policy maker in the federal government.

One has to start from the premise that we are a self-governing people, in our republican system, and that the judiciary are supposed to put a brake on the governors by insisting that laws be fairly interpreted. That sets a much more narrow compass for the judiciary than many activists would like. Many judicial activists want judges to enact positive policies to transform society, and basically to order people to do what they think ought to be done. I abhor that view.

TAE: You have stated that the values imposed by the Supreme Court have contributed to the decay of our society. Could you give us some examples?

JONES: The philosophical underpinnings of our government are the contract theory which says that we are a self-governing people, and the historical view that in order to be properly self-governing we must have a moral foundation. The Supreme Court's porno-graphy cases, the cases involving free speech that included those where people were allowed to spout the "F" word in public venues, the criminal procedure decisions which allowed many, many guilty people to go free because of rights that justices discovered in the Constitution for the first time in its two centuries of existence are examples of the overstepping of bounds. In several notable areas the Supreme Court has been operating on fatally flawed philosophical premises not well tested in actual society.

TAE: You recently authored an opinion in the McCorvey v. Hill case that got a fair amount of attention. This is the case that attempted and failed to reopen the Roe v. Wade abortion ruling. Your opinion highlighted the tension between the Supreme Court's ruling and modern scientific knowledge about what happens to babies and to women during abortion.

JONES: I was trying to point out that by Constitutionalizing the right to abortion, the Supreme Court had removed from the ordinary political processes any debate in which facts about prenatal advances, or health effects on women, could be heard and taken into account. In fact, the Court's exceptionally broad ruling removed fact-finding processes even from the Court's own debates. Facts, I concluded, no longer matter to the Supreme Court in certain cases.

Posted by Orrin Judd at July 19, 2005 2:24 PM

This is all a ploy to divert attention from KKKarl Rove.

Posted by: Raoul Ortega at July 19, 2005 2:42 PM

I'll take the second Edith, thank you.

Posted by: Rick T. at July 19, 2005 3:13 PM

Deborah Cook of the 6th circut.

Do I get a book if I am right?

Posted by: Robert Schwartz at July 19, 2005 3:31 PM

I wish it were Jones, but Clement is in Washington, and given all the ostentatious "consulting" they did with the Dems, it would have been outright insulting if they'd taken a strong conservative like Jones that the Dems said they hated. If Bush wanted a strong conservative, he wouldn't have had all those consultations.

Posted by: pj at July 19, 2005 4:23 PM

Well, maybe it is Jones -- she's jumped from 9% to 51% at Tradesports, and Clement has dropped from 80% to 55% (yes, you could make some money selling both).

Posted by: pj at July 19, 2005 4:55 PM

Sean Hannity said ABC news is reporting it is *NOT* Clement. Looks like OJ was right!

Posted by: Bruce Cleaver at July 19, 2005 4:56 PM

PS - I meant to say, in the last three hours.

Posted by: pj at July 19, 2005 5:06 PM

Jones. The Clements deke was cool, though.

Posted by: ghostcat at July 19, 2005 5:36 PM

Jones would certainly be filibustered by the Dems. Thus, until they can get the margin to 57-43 or 58-42, they should probably avoid someone who is such a lightning rod.

Clement would be excellent.

Posted by: bart at July 19, 2005 6:46 PM


Clement ruled in favor of gun control.

Posted by: oj at July 19, 2005 6:53 PM

Fox News says: John Roberts.

What the ....

Posted by: Bruce Cleaver at July 19, 2005 7:49 PM