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The buzz in D.C. is that Edith Brown Clement is a strong possibility for the Supreme Court nomination expected this week.  Some quick bullet points on her after the jump to help provide some background. It is widely believed that President Bush is looking to replace O'Connor with a woman, and that interest took a number of the more obvious choices off of his list.  She looks like a very strong contender for the open seat on the Court.  Her record as a jurist makes it hard to determine the extent of her judicial conservatism, but several of her decisions make it clear that she is no Sandra Day O'Connor.

More after the cut...

Edith Brown Clement Info:

B.A. - University of Alabama, 1969
J.D. - Tulane University 1972
1973-1975 Law clerk for Judge Christenberry, U.S.D.C. E.D. La.
1975 - 1991 Jones, Walker, Waechter, Potivent, Carrere, & Denegre (law firm), specializing in maritime law
1991 - Nominated to the Louisiana Eastern District Court
2001 - Nominated to the Fifth Circuit Court of Appeals

  •      Strong advocate of the federalist revolution
  •      Favors limitation of Congressional power
  •      Conservative jurist
  •      Has a narrow view of plaintiff "standing" - making it harder for plaintiffs to seek a remedy from the courts
  •      Has authored several opinions that show a lack of regard for jury awards for pain and suffering
  •      Has been criticized by fellow jurists for substituting her own view for those of trial courts and juries
  •      Longtime member of the The Federalist Society, a conservative legal group
  •      Wrote an opinion arguing that parts of the Americans with Disabilities Act was unconstitutional as applied to state and local governments.  Justice O'Connor's judgment on a similar case was the opposite.  The case O'Connor and the Supreme Court ruled on was well known because the disabled plaintiff had to climb up the County Courthouse was well known because the disabled plaintiff had to climb up the County Courthouse steps for a court appearance because there was no handicap access to the building.  He refused to climb again, and was arrested for not appearing in court.  O'Connor and a majority of the Supreme Court held that the disabled deserved equal access to the courts.Tenn. V Lane; "Jurors Side with Disabled in Lawsuit" - MSNBC

Notable cases:

Re Monumental(pdf): she authored a dissent that would denied class certification for to a group of African Americans who wanted to sue 180 insurance companies  for charging them more than white customers for the same insurance policies.

Brown v. Parker Drilling Offshore Oil Corp (pdf): she vacated a jury award for a man who had been injured working on an offshore rig.  He injured his back in the incident, and because he had not told his employer prior to his hiring that he had been treated at an emergency room previously for a back injury, Clement felt that the company owed him nothing for injuries incurred on the job.

Volger v. Blackmore (pdf): wrote the majority opinion drastically reducing the award to the family of a mother and daughter who died in a car accident, in part, she asserted, because there was not enough evidence that the daughter had experienced pain and suffering before dying. ( A fellow Fifth Circuit Judge criticized her for violating the deference to jury verdicts rule).

Planned Parenthood of Houston v. Sanchez (pdf): upheld a Texas statute that restricted the distribution of federal family-planning money to any organization that performed abortions or participated in abortion-related activities.

Originally posted to starchild on Tue Jul 19, 2005 at 08:40 AM PDT.

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Comment Preferences

  •  Pretty awful (none)
    She's Priscilla Owen like in her support for business (which is probably why Bush is attracted to her).  Plus, she's a big believer in restricting congressional power.  Then again, O'Connor was pretty big on both of these.  But I think Clement would be even more.

    Democrats must confront the cultural populism of the wedge issues with genuine economic populism. Thomas Frank.

    by Paleo on Tue Jul 19, 2005 at 03:36:40 AM PDT

    •  Sorry to hijack this thread (none)
      but I have a secret government source (my first!!!) that confirmed it will INDEED be Clements that's selected tonight.  (Remember, my source only confirmed it.)

      Seriously, though, the rumors are true.

      •  And she's not as moderate as some may think (none)
        She signed a dissent that sought to gut the Endagered Species Act - see this diary that I just wrote. </pimp>  ;)
        •  Thanks (none)
          someone in the open thread also posted a decision where she states that Roe would've been decided differently if the justices had the medical knowledge of fetuses we know now.
          •  She is committed to upholding Roe (none)
            At least that's what they said on NPR.  They quoted her as saying that the court "spoke definitively" when it made its decision in Roe.

            This is guaranteed to rankle Bush's base.

            I honestly think that if she doesn't get confirmed, Owen will be the next nominee.  And we all know where she stands on Roe...

            War is hell. Execute Order 66.

            by raymundo on Tue Jul 19, 2005 at 08:07:52 AM PDT

            [ Parent ]

      •  I just heard that the WSJ (none)
        has dug up an answer from some sort of judicial questionaire, where Clements stated that Abortion was a privacy issue and has been settled by the courts.

        Although she is very pro-corporate, it apppears the Religious Right are not gonna be happy with this pick, likely making it a difficult confirmation.

        I don't have the link, since I'm not a subscriber to the WSJ, but it appears on the front page of their site.

        (Props to Thom Hartmann for this find.)

        "If the Bush Crime Family were the Corleone Crime Family, then Dumbya would be Fredo Corleone."
        LJ's Blogorific

        by The 1n Only Leoni on Tue Jul 19, 2005 at 07:13:38 AM PDT

        [ Parent ]

  •  Monumental (2.66)
    She's a racist.  She thinks it's OK under the law for companies to charge blacks more than whites for insurance.  Bullshit.

    If we want to defeat her, we should have one message:  She is a racist.

    Let the Republicans defend that one -- they'll get into their typical legalese and we'll be the ones with the simple message (and truth on our side).

    She's another Oil Company tool, too, as if the County really wants another Oil company tool running the country, but the real message if Democrats decide to oppose her is that she's a racist.

    •  Truth on our side? (3.75)
      Give me a break.  She didn't say anything close to what you just wrote.
      •  What she said (3.00)
        Blacks don't have any right to file a class action suit against insurance companies that charge them higher rates than whites.

        Maybe you don't agree with my interpretation that her ruling is racist, but she did rule that way (and I should add that she was all alone in this ruling on that 3 member panel).

        •  The ruling was on a procedural issue (4.00)
          She never even discussed the issue of whether these plaintiffs had a right to relief or not.  It was all about whether the technical aspects of the class-action rules were satisfied.  There was zero discussion of the merits.

          If every time someone rules against a black plaintiff, we are going to smear them as racist, I can't say as I agree with that approach.  I defy anyone to show me anything from her opinion that could be construed as showing a hostile attitude towards the plaintiffs.  It was a procedural issue, period.

          And to the drive-by person who gave me a 1 for pointing out this was a false cry of racism, shame on you.  I have $10 that says you never even read the opinion.

          •  lol... (none)
            The person didn't give you a one. It only showed that 1 person had rated the comment...

            you've got two ratings on the comment-- both of them are 4

          •  It's always procedural (none)
            When Republicans opposed civil rights laws, it was always procedural issues, not on the merits.

            When they outlaw gay marraige, it's on procedure, not because they openly say they hate gays.  

            They'll never come out and say that they think it's OK to discriminate, they'll just try to catch it in legalese like this ruling.

            In my opinion, if someone is ruling against the rights of african-americans to sue companies that discriminate against them, we ought to use that (whether or not we use the 'R' word, and I'll concede that we're better off hinting at it than saying it openly)

            Afterall, don't forget that the Republicans are willing to call us racists for opposing a minority nominee.  Given that standard, it seems within the bounds of today's political discourse as they've established it, to suggest racism as a motive for appointing a judge who won't even let blacks have the legal standing to file a class action lawsuit aginst companies that charge them more than whites for the same product.

            •  I don't get it (none)
              It seems pretty clear to me that Republicans oppose gay marriage on the grounds that they think marriage should only be between a man and a woman.  I don't see the "procedural" arguments.

              There are plenty of cases that raise substantive issues.  When a gay person brings a discrimination case, and the courts rule on whether or not they belong to a protected class, that's a substantive ruling.  When a court tells a plaintiff that what he's alleged doesn't amount to an injury in the eyes of the law, that's a substantive ruling.  There are thousands of substantive rulings.

              Your "theory" is that Clement ruled the way she did because she doesn't like black people, but she cleverly disguised it as a procedural issue.  How, then, do you explain the fact that the majority opinion dealt exclusively with that same procedural issue?  If the case was really about whether black people deserve equal treatment, why was the majority opinion not filled with paeans to the equal rights of minorities?

              If you can show a pattern in a judge's cases of ruling against a particular class of people, it's fair to draw an inference.  Pointing to one single case where the judge ruled against African-American plaintiffs on a procedural issue, and claiming this as an indicator of racism, is just unjustified.  While Republicans definitely play the race card in a shameless manner, I don't agree that we should try to be more like them.

      •  What's truth got to do with it. (none)
        Truth had been lost in politics, it's all about the spin. The only problem is the top spinmeisters work for FauX.

        "It's about the accountability, stupid." Thomas Davis 2005.

        by Tomtech on Tue Jul 19, 2005 at 07:01:23 AM PDT

        [ Parent ]

        •  Look (4.00)
          I don't believe in calling people racists just because it's an attention-grabbing attack.  Even if you believe truth should have nothing to do with how we criticize a nominee, a position I just can't agree with, the undeniable fact is that lobbing unsupportable accusations of racism just makes it that much harder to draw attention to ACTUAL racism.  There is a cost to crying wolf, and not every judge who rules against a black plaintiff is automatically racist.
          •  Calm down. (none)
            90% of my comments are pure snark, including that one. The last thing we need to do is base our critique on falsifications and inuendo because, while most talking trumpet the lies of the right, they would (further) vilify the left for even talling the fact based truths.<not snark>

            "It's about the accountability, stupid." Thomas Davis 2005.

            by Tomtech on Tue Jul 19, 2005 at 10:46:53 AM PDT

            [ Parent ]

            •  Fair enough (none)
              I've had to respond to about 10 different people today saying we should smear Clement as a racist, whether or not it's true, so I apologize for assuming you were coming from the same place.  I guess it's a moot point now, as we will have a different nominee to smear as a racist!
    •  Gotta agree with Steve M (4.00)
      Her dissent was on a very technical issue of federal class-action procedure.  You cannot, if you're an honest and intelligent person, extrapolate from her dissent that she had any particular opinion about the merits of the lawsuit, much less that she "thinks it's OK under the law for companies to charge blacks more than whites for insurance" or, worse, that she's a racist.  That's just dishonest, period.
      •  racism (none)
        She is not necessarily a racist, but all Democrats are racists because they opposed Miguel Estrada.

        I'm all for intellectual honesty, but realize that we are fighting an opponent who is not burdoned by such ethical restraints.

        And there are no refs. The media are not going to call anybody out for intellectual dishonesty. They have been incorporated into the Borg.

    •  Thanks! (none)
      Very valuable background.

      Keep it coming!

      The concept of war is outdated. Dalai Lama

      by x on Tue Jul 19, 2005 at 05:41:48 AM PDT

      [ Parent ]

    •  Race Discrimination (none)
      Judge Edith Brown Clement
      Judge Edith Brown Clement dissented from a 2-1 ruling in favor of African American plaintiffs in a civil rights lawsuit brought against life insurance companies that had maintained dual rate and dual plan policies by race, placing African Americans "in policies offering the same benefits as do policies sold to whites, but at a higher premium."

      The district court denied the plaintiff's motion to proceed with a class action - which, in all likelihood, would have ended the lawsuit. The Fifth Circuit reversed, with Judge Clement dissenting. Bratcher v. National Standard Life Insurance Co., 365 F.3d 408 (5th Cir. 2004)

      Go read, Four Years Later: An Early Look at the Impact of Bush Judges on the American People from the website of Senator Reid.  
    •  No, don't call her a racist. (4.00)
      Say that she thinks it's OK under the law for companies to charge blacks more than whites for insurance...hey, wait a sec. You already said that! Way to go, because that's exactly what we should be saying. If we say that and say why we think that by pointing to her decision in that case, then the American people can figure the rest out for themselves...and if they can't, then saying she is a racist won't help anyway.
      •  Almost. (none)
        Cite it your way (I agree!).

        Then say "Some people would call that racist..."

        Lead to water... then let them drink. (Not to mention learning something from Faux.  They use the technique to slime, but that doesn't mean that the technique is inherently slime...)

        "Too many policemen, no liberty; Too many soldiers, no peace; Too many lawyers, no justice." Lin Yutang (1895-1976)

        by ogre on Tue Jul 19, 2005 at 07:16:22 AM PDT

        [ Parent ]

      •  You know... (none)
        I know that the Republicans are inveterate liars.  Do we have to be liars too?  I guess I'm naive enough to hope that the answer is no.  And saying Clements said that it's OK for companies to charge blacks more than whites is just that: a lie.

        I'm sure there are plenty of good, truthful reasons to question this pick (if it's her).  How about we stick to those?

        •  It's not a lie (none)
          I probably mistated it.  But we can say, "She doesn't even think blacks should have the right to file a class action suit against insurance companies that charge them more than whites for the same service."

          That is 100% accurate, and as noted above, "some would call that racist"

  •  Well... (none)
    she definitaley appears to be a suitable choice for Bush to pick.  That is, she is a member of the disgusting Federalist Society and rules against individuals any chance that is offered, as well as possessing an apparent disdain for juries.  

    How does she stand on Roe v Wade?  Wait, lemme guess...

    "Whensoever the general Government assumes undelegated powers, its acts are unauthoritative, void, and of no force."
    - Thomas Jefferson

    by Billy Shears on Tue Jul 19, 2005 at 03:41:02 AM PDT

    •  Federalist Society (none)
      its scary to see how memebership in the FS has become a litmus test for Bush Nominees.  When I was in law school they were always considered something of a bad Joke, even among the most conservative students; almost like the law school equivalent of one of those LaRouche groups that pop up at universities and demand student activity fee money.

      Scary as hell to think of people on the bench that buy that crap.

      Knowledge is power Power Corrupts Study Hard Be Evil

      by Magorn on Tue Jul 19, 2005 at 04:06:45 AM PDT

      [ Parent ]

    •  In her Senate hearing for (none)
      the Circuit Court, she said Roe was 'settled law.' Now, that was for Circuit Court, for SC it might be different. This is/was a concern at Red State, that she might go "Souter" on them, because there were other judges(John Roberts I believe) who would not say Roe was settled during their confirmation hearings.  

      I'm not a big Greenspan fan. I voted against him two times. I think he's one of the biggest political hacks we have in Washington -Harry Reid

      by jj32 on Tue Jul 19, 2005 at 05:18:37 AM PDT

      [ Parent ]

  •  Ah, but she's not in Opus Dei (none)

    Which minority group would Jesus hate?

    by NorCalJim on Tue Jul 19, 2005 at 03:47:23 AM PDT

  •  C- (none)
     "Brown v. Parker Drilling Offshore Oil Corp (pdf): she vacated a jury award for a man who had been injured working on an offshore rig.  He injured his back in the incident, and because he had not told his employer prior to his hiring that he had been treated at an emergency room previously for a back injury, Clement felt that the company owed him nothing for injuries incurred on the job."

    -UNT

  •  Dear God Almighty (4.00)
    wrote the majority opinion drastically reducing the award to the family of a mother and daughter who died in a car accident, in part, she asserted, because there was not enough evidence that the daughter had experienced pain and suffering before dying.

    I already hate this woman.

    "We must all hang together or assuredly we will all hang seperately." - Ben Franklin

    by RandyMI on Tue Jul 19, 2005 at 03:53:33 AM PDT

    •  there's your talking point (4.00)
      I'm not yet sure how strongly the Democrats should push back/resist against Clement. But if they decide to go full-throttle to derail her nomination, this is the way to do it. It goes right to every parent's gut, and reads almost Nazi Doctor in its absence of compassion.
    •  Can anyone say tort reform? (none)
      This just may be the opening shot in the battle over tort reform. First thing Bushco would want to do in that battle is get the Supremes stacked against any judicial challenge of tort reform legislation that might arise.

      This is an awful, awful day that we all knew was coming last November 3rd. We're relegated to hoping that this nominee has a vague enough judicial past that she isn't vehemently anti-choice. Regardless of her stand on that issue, this potential justice, and really anyone that BushCo is going to nominate, is going to be stridently anti-worker and pro-corporation.

      Fuck Bush and his bullshit nominees.

       

    •  she was confirmed (4.00)
      in 2001 by the Senate 99-0. The story is that the Dems are on board this time as well.

      In the partic case cited, she overstepped on the jury award but they still got over 2.5 million.

      I don't think this is one that is worthy of a fight other than to keep asking suggestive questions about how she would handle treason, perjury, impeachment, obstruction of justice....even if she would recuse herself, and even if there is an ongoing investigation, it is good to use the hearings to blast away at the crooks in the WH.

      basically give it up, and get back to TREASON.

      BUSH LIES, PEOPLE DIE

      by seesdifferent on Tue Jul 19, 2005 at 06:30:48 AM PDT

      [ Parent ]

  •  /Favors limitation of Congressional power/ (none)
    Does this mean she would have ruled against Congress in the Schiavo fiasco?

    "We must all hang together or assuredly we will all hang seperately." - Ben Franklin

    by RandyMI on Tue Jul 19, 2005 at 03:54:51 AM PDT

  •  Yes (none)
    But so should have everybody. There's a reason the SCOTUS didn't want to hear it.
  •  Tennessee v Lake? (4.00)
    Wrote an opinion arguing that parts of the Americans with Disabilities Act was unconstitutional as applied to state and local governments.  Justice O'Connor's judgment on this case was the opposite.  This case was well known because the disabled plaintiff had to climb up the County Courthouse steps for a court appearance because there was no handicap access to the building.

    How could Clement have written an opinion on this case? It came up from the Sixth Circuit, not the Fifth, where she's a judge.

  •  Apparently Bush's supply of assholes (4.00)
    is unlimited.

    ...the White House will be adorned by a downright moron...H.L. Mencken

    by bibble on Tue Jul 19, 2005 at 04:22:42 AM PDT

    •  Assholes On Parade (none)
      There's a great song by the band Timbuk 3, Assholes On Parade:

      It's an asshole celebration
      And they're all out on the street
      See them on the sidewalk
      Oh, hear them shufflin' feet
      As twenty thousand assholes
      Do an asshole promenade
      Step aside, good people
      It's the assholes on parade

      We got assholes for freedom
      The assholes for fun
      The assholes for Jesus
      And the assholes for guns
      Assholes for justice
      Assholes for crime
      Assholes for assholes
      Assholes for all time

      We got assholes making money
      They makin' all the rules
      Taking all our jobs
      And they're fillin' up our schools
      Assholes on the water
      Assholes in the sky
      I saw a sign that says, "Help Wanted --
      Only Assholes Need Apply"

      This is how liberty dies... with thunderous applause.

      by socal on Tue Jul 19, 2005 at 04:33:41 AM PDT

      [ Parent ]

  •  From the WaPo profile: (none)
    She specialized in civil litigation involving maritime law, representing oil companies, insurance companies and the marine services industry in cases before federal courts.

    Three guesses as to how she would rule on any environmental suits.

    •  Yes, No, and Maybe (none)
      Those are my three guesses.  Do I win?

      Personally, I represented one of the world's largest oil companies on multiple occasions, and yet I would not be a tool of Big Oil if I were appointed as a judge.  I represented dozens of corporate clients, just like the majority of lawyers who graduate from good law schools.  It's a living.

      I'm not denying Clement is a pro-business judge, but I don't think who she represented in private practice has a lot to do with it.

  •  Ewwww! (none)
    They don't call him high on the hog for nothing!
    Bye bye abortion rights, the ADA, ACLU, a general respect for the checks and balance system of the judiciary. Great idea! Lets nominate a judge who ignores the gravity of the courts. Might as well ride in and start the barn raising.

    "In times of universal deceit, telling the truth will be a revolutionary act." ~George Orwell

    by txdem21 on Tue Jul 19, 2005 at 04:40:53 AM PDT

  •  Come on now. (none)
    We all know Bush is a conservative and is going to nominate conservative judges to the bench.  Believe me she is the least objectionable of the group he was considering. Belonging to the federalist society doesn't mean she's bought into all their crap.  She comes across to me as someone corporate America is pushing, and like many people in corporate America they sometimes join certain organizations to make contacts and nothing more.

    The thing I think is important is this is a nomination that will not please the religious right. (snicker)  Seems the Christian conservatives believes Bush should genuflect whenever they come around, but it also seems they "misunderestimated" Bush's ego.  The nomination of Clements may be Bush's way of saying "Hey, don't vote for me in the next election."

    Think I'll go pop some popcorn and sit back and watch.

    "Let Valor Not Fail"

    by Rakkasan on Tue Jul 19, 2005 at 04:49:56 AM PDT

  •  Well, we lost (none)
    the election and we knew this would be the consequence. Anyway, thatks for the heads-up, not that anything we do will matter, in this matter.
  •  What speeches has she given? (none)
  •  NBC just ran a special bulletin stating that (none)
    Bush will reveal his nomination at 9 pm tonight.
  •  dKospedia entry (4.00)

    cheers,

    Mitch Gore

    Nobody will change America for you, you have to work to make it happen

    by Lestatdelc on Tue Jul 19, 2005 at 05:19:50 AM PDT

  •  Oh goodie, another Federalist Society member. (none)
    Advocating a giant F.U. to the public good since its inception.

    Impeachment is not an option. It is our moral obligation.

    by Republic Not Empire on Tue Jul 19, 2005 at 05:21:35 AM PDT

  •  I wouldn't push back too hard... (4.00)
    If she is rejected, I guarantee the next nominee would be worse.

    Not that she has been nominated yet...I am actually hoping the rumors are correct--we are staring at several truly awful alternatives.  

    Clearly, her name has been intentionally leaked--we don't know why yet--still could be to throw people off in order to make the biggest impact.

  •  Point of clarification (4.00)
    First off, thank you for such an insightful diary.

    I just wanted to point out something regarding Volger v. Blackmore. Yes, Clements did scrap the pain and anguish damage awards, but she affirmed the most significant portions of those awards. From Slate:

    "(Clements) affirmed damage awards of $1.9 million for the man's loss of his wife and $1.5 million for the loss of his daughter. Reduced from $200,000 to $30,000 an award to the wife's estate for her pain and mental anguish before her death and eliminated a $200,000 award to the daughter's estate for her pain and mental anguish."

    So, assuming the husband/father was the beneficiary of his wife's and daughter's estates, she basically reduced a $3.8 million judgement in his favor to a $3.43 million judgement in his favor.

    For what that's worth.

    Spare the poor people of Crawford, Texas. Send Bush a one-way ticket to the moon instead.

    by JacksonBlogs on Tue Jul 19, 2005 at 05:41:06 AM PDT

    •  No. (none)
      There are two different claims there.


      $1.9 million for the man's loss of his wife and $1.5 million for the loss of his daughter

      That's his loss, and the attempt at "making good" that loss.

      And then there are the awards for the pain and suffering fo the victims.  Those are awards to the VICTIMS.  Since they're dead, he their estates receive them... and they go to him.  But that's not an award to him, per se.

      Now look at this:

      Reduced from $200,000 to $30,000 an award to the wife's estate for her pain and mental anguish before her death and eliminated a $200,000 award to the daughter's estate for her pain and mental anguish."

      That devalued the pain and suffering of the victims from $400,000 to $30,000.  Or, to be more accurate, the wife's from $200,000 to $30,000 -- a mere 15% -- and the daughter's to nothing.

      What she affirmed in toto was the value of the husband's loss--his possessory interest, in essence.  The value of a human being's life to the individual was crapped on.

      "Too many policemen, no liberty; Too many soldiers, no peace; Too many lawyers, no justice." Lin Yutang (1895-1976)

      by ogre on Tue Jul 19, 2005 at 07:12:24 AM PDT

      [ Parent ]

      •  Yes (none)
        There are two different claims there. Nobody said any differently. But the practical value of what I wrote remains accurate. It's doubtful that the two dead victims were going to reap much benefit from that $400K.

        Yes, Clement devalued the pain and suffering of the two victims. I didn't suggest anything otherwise; that was presented as a fact. Since it is unlikely that the mother and daughter will be coming back from the dead in order to stake a claim at that judgement, I issued a practical analysis. Take it as you will.

        Spare the poor people of Crawford, Texas. Send Bush a one-way ticket to the moon instead.

        by JacksonBlogs on Tue Jul 19, 2005 at 07:27:00 AM PDT

        [ Parent ]

      •  A few more facts... (none)
        The mother and daughter were found to have been killed pretty much instantly in the accident.  Based on the findings below, Clement said that the mother may have been aware of her impending death for at most three-and-a-half seconds.  That was the pain and suffering that was being awarded for, and Clement upheld the jury's finding that she did experience pain and suffering.  As for the daughter, it was a 3-year-old in the back seat, and Clement said there was no evidence that she was "aware" of her impending death.  Hence, she didn't suffer any pain and suffering while alive.

        Also, with respect to reducing the mother's award for that three-and-a-half seconds of suffering, Clement based that on comparison with awards in similar Texas cases -- it wasn't simply her judgment as to what it was worth (although that's always present to some extent in such cases).

        You may still disagree with what she did.  I just wanted to get the facts out there.

  •  United States v. McFarland (4.00)
    She's "weak on crime."

    Clements voted to vacate the conviction of a criminal who committed multiple armed robberies.  She then proceeded to berate the majority who affirmed the convictions, going so far as to attribute imagined opinions to them, simply so she could attack them.

    People for the American Way:

    The defendant in this criminal case had been convicted under the Hobbs Act for the armed robbery of four different retail convenience stores. The Hobbs Act makes it a federal crime for someone "in any way or degree" to obstruct, delay, or affect "commerce or the movement of any article or commodity in commerce, by robbery or extortion . . . ." 18 U.S.C. § 1951. The Act is important in authorizing the federal government to prosecute crimes that affect interstate commerce. On appeal in this case, the defendant argued that these were local robberies and that application of the Hobbs Act was unconstitutional. A three-judge panel of the Fifth Circuit affirmed the defendant's conviction, following existing Fifth Circuit precedent under which the Hobbs Act is considered applicable to conduct that, in the aggregate, can reasonably be thought to substantially affect interstate commerce. One of the judges specially concurred and urged en banc reconsideration of the case. United States v. McFarland, 264 F.3d 557 (5th Cir. 2001).

    Thereafter, the Fifth Circuit, "by reason of an equally divided en banc court," 8-8, affirmed the defendant's conviction in a per curiam (unsigned) ruling. 311 F.3d at 377. Judge Clement was one of the eight judges who dissented from that affirmance and who would have reversed the defendant's conviction. Clement joined two different dissents. The first was a dissent written by Judge Garwood, joined by all of the dissenters, in which the dissenters opined that the "aggregation" principle should not be employed under the Hobbs Act, and that doing so brought "within the scope of the Commerce Clause the proscription of local violent (and other) crimes not constituting the regulation of commercial activity . . ." Id. at 409. In this dissent, the eight judges expressly acknowledged that the manner in which they would interpret the Supreme Court's Commerce Clause precedent for purposes of the Hobbs Act was inconsistent with the holdings of several other circuits. Id. at 394-95. In other words, Judge Clement voted to significantly limit the reach of the Hobbs Act and the authority of Congress under the Commerce Clause. In doing so, she would have overturned established Fifth Circuit precedent and ruled in a manner inconsistent with the law in several other circuits.

    Clement, however, did not stop there. Along with three other judges, she also joined a dissent written by Judge Edith Jones that excoriated the eight judges who had voted to affirm the defendant's conviction for not writing an opinion. Clement and the four other dissenters accused the eight judges of "withdraw[ing] from the field of reasoned dispute" and "default[ing] their duties of public explication, accountability and transparency." Id. at 416, 417. Then, stating that, "[b]ecause our colleagues are unwilling to speak for themselves," these five dissenters went on to "attempt to paraphrase the most significant arguments for [the eight judges'] position," Id. at 421, and proceeded literally to put words in the other judges' mouths, setting up arguments for those judges and then knocking them down. (E.g., "[t]hose who affirm concede that," "some of our silent colleagues would agree that," etc. Id. at 421 422.)

    This extraordinary dissent prompted a sharp rebuke from two of the judges who had voted to affirm the defendant's conviction. Those judges wrote specifically to state that it was "a deep mystery to us why five judges thought it helpful or appropriate to take eight fellow judges to task for failing to explain why they decline to change the established law of this circuit and create a circuit split. We of course disclaim their attempt to attribute views to us." Id. at 377.
  •  the most dangerous view she has... (none)
    is "Favors limitation of Congressional power." Congress represents the people. If she favors the limitation of Congressional power, she favors the diminishment of the peoples' voice in their government.

    There was a reason the Founders put the Congress first in the Constitution. It was considered to be the most important of the 3 branches. The 3 branches may be checks and balances on each other, but that doesn't mean they are--or were meant to be--exactly equal in power.

  •  Constitutional amendments, anyone? (4.00)
    One thing that really disturbs me about the worry over the Supreme Court Justices is that, frankly, they are creatures of their political times. FDR tried to change the nature of the Court so that the New Deal could proceed unabated, and got roundly slapped.

    Now Bush and the Right Wingers get their chance.

    But all of these concerns are based on the unpredictability of human beings - and that will remain, whether we get a decent Justice on the Court or not.

    Why don't we ever set some long-term plans in motion to add the rights that we believe in to the Constitution directly? The Right is always popping off "an amendment against flagburning", or "an amendment to preserve marriage." Sure, we don't control Congress now, but isn't the day we do something we are all fighting for?

    And what do we want the Congress for? Certainly, being able to amend the Constitution should be a paramount effort.

    I'm all for a "right to privacy" amendment. I'm all for an amendment that allows Congress to regulate polluting businesses and commerce, whether they are interstate or not. I believe in an amendment that defines "the right to bear arms." I believe we definitely need an amendment that specifies the abilities of a Commander-in-Chief during wartime, and how war is declared. Hell, I'm even for an Equal Rights for Women amendment, even if I've already seen it fail in my lifetime.

    We can't expect the Supreme Court to enforce decisions in our favor and not get pushback and resentment from a constituency who feel that they have not been conculted. At least the long educational campaigns that swirl around amendment battles - and the statewide votes - give people a chance to participate.

    If the Constitution is a living document, it can be amended as situations demand.

    It's better in the long run to work diligently and achieve permanent change than to rely on the whims of politics and the proper opinions of the Justices serving.

  •  Not all bad (4.00)
    United States v. Houston, 364 F.3d 243 (CA5 2004) - held that consensual sex, constituting statutory rape, between 20 year old male and 17 year old girl was not a "crime of violence" for purposes of provision requiring sentencing enhancement for crimes of violence.

    United States v. Medina-Anicacio, 325 F.3d 638 (5th Cir. 2003) - Judge Clement, writing for a unanimous panel, found that possession of a deadly weapon was not a crime of violence within the meaning of the sentencing guidelines and therefore overturned an enhancement to the defendant's sentence.

    United States v. Turner, 319 F.3d 716 (5th Cir. 2003) - Judge Clement found that the district court erred in attributing five kilograms of cocaine to the defendant for sentencing purposes. Although the defendant was in fact part of a conspiracy to distribute that amount of drugs, only quantities which the defendant was actually involved with or could have reasonably foreseen (however, the sentence was upheld because Judge Clement found the error to be harmless).

    United States v. Vargas-Duran, 319 F.3d 194 (CA5 2003) - Judge Clement dissented from the panel's decision that a conviction for "intoxicated assault" was necessarily a conviction for a "crime of violence" because it necessitated the use of force against another person. Judge Clement argued that under binding precedent, use of force was only a "crime of violence" if it was intentional. On rehearing en banc, the full circuit adopted Judge Clement's position.

    Chiu v. Plano Indep. Sch. Dist., 339 F.3d 273 (5th Cir., 2003) - held that school district's policy requiring pre-approval of protest fliers handed out by parents at the school's "math night" constituted an unconstitutional prior restraint, in violation of the First Amendment.

    http://www.sctnomination.com/blog/

    Democrats must confront the cultural populism of the wedge issues with genuine economic populism. Thomas Frank.

    by Paleo on Tue Jul 19, 2005 at 06:31:46 AM PDT

    •  thanks for this (none)
      after looking at the 'con and pro' (in a 'progressive' view) decisions she has made, she doesn't seem great... i'd definitely prefer someone else, but we are not going to get them.

      so far her bad decisions don't seem overwhelmingly horrible and her good decisions seem all right.

      We shouldn't give her a 'pass', but at the same time we shouldn't start sound shill on this...

      we will have much larger battles if Renquist or Stevens retires.

      and I was thinking, a nomination battle (on someone not great, but not horrible) that took over the media would deflect bad attention on the Republicans (DSM, Plame, Rove) and redirect it to the Democrats (being unreasonable, etc).

      Lets destroy any good will that the Bush administration has left so when the next judge retires or dies he CAN'T nominate someone who is horrific.

      "If you and I think exactly alike, one of us is unnecessary" "at least bleeding heart liberals have one"

      by wclathe on Tue Jul 19, 2005 at 07:24:02 AM PDT

      [ Parent ]

  •  Roe is going to go soon (none)
    and we need to be ready, not pissed off and shouting at each other.  It will be nothing short of a miracle if we get someone on the court who rules to uphold it.  It's going to come down to state-by-state battles with the anti-choice Jesus Nazis.  When they goosestep into your home town, I recommend you be ready with more than a red face and an angry tone.

    TK-421, why aren't you at your post?

    by Magnus Greel on Tue Jul 19, 2005 at 06:38:17 AM PDT

    •  as ralph nader says in regards to roe v wade (none)
      last time i checked, the republicans weren't looking to commit political suicide.

      on the other hand, they own the voting machines......

      "Private property means you get nothing"
      -Jeff Ott

      by mediaprisoner on Tue Jul 19, 2005 at 07:11:23 AM PDT

      [ Parent ]

      •  There was a time when I would have agreed (none)
        but I suppose when you're on a mission from god, as Bush clearly believes himself to be, democracy and the will of the people are just little annoyances.

        Our only hope is that Republicans in Congress, who have to live in the world, see sense.  Not going to hold my breath, though.

        TK-421, why aren't you at your post?

        by Magnus Greel on Tue Jul 19, 2005 at 07:35:54 AM PDT

        [ Parent ]

  •  But, Can She Stomach A Male Chauvinist ? (none)
    After about three months being around Scalia she might find comfort in developing a bond with Ruth Bader Ginsburg.  

    And, look at her backgrond.  Primarily Maritime Law, which makes sense coming from Tulane Law School.

    She might quickly find she is out of her league in the Supreme Court, and at that point, she will need to find an ideological mentor and patron.  I cannot see either Scalia or Thomas filling that role.

    She might well turn out to be the same type of surprise that Seuter provided.

    Wishing and hoping . . . .

  •  I agree with Steve M on this... (none)
    I just read the decision, it was on a procedural issue and had nothing to do with the merits of the case. She didn't say "it's all right to discriminate', she said 'if you want to sue, we all must follow the procedure'.  Huge difference..

    and to get from there to 'racist' is a huge leap.

    My biggest problem with this is that when a REAL racist or racist act comes along and we (Democrats) call it that, we won't be taken seriously because we've cried wolf a few too many times.

    One judgement on a procedural technicality does not a racist make, unless you want to start calling all judges racist.

    "If you and I think exactly alike, one of us is unnecessary" "at least bleeding heart liberals have one"

    by wclathe on Tue Jul 19, 2005 at 07:14:28 AM PDT

  •  Limitation on Congressional Power (none)
    What about DOMA?

    Conservatives' "congressional limits" argument falls off the rails when it hits DOMA.  

    In my view, the biggest cases coming down the pike are not the right to terminate pregnancy (not to minimize it's importance...), but gay marriage.  But maybe I'm being egotistical.

    "...with liberty and justice for al[most everybody]."

    by PeteyP on Tue Jul 19, 2005 at 07:17:00 AM PDT

  •  Perhaps you are unaware (none)
    that Ginsburg and Scalia are, despite all their differences, extremely good friends. I don't know why, but it's true.
  •  Is she for the Constitution in Exile? (none)
    •  Remains to be seen (none)
      She is a member of the Federalist Society, and her rulings do show an inclination towards that end of the spectrum (ruling against some bugs in an ESA case, against a Hobbs Act prosecution of a criminal, and against the ADA). Her case record is not well-developed enough to know how far she'd go; she hasn't proven herself to be a Rogers-Brown, for example.

      This is one of those Things The Senate Needs To Ask.

      True compassion is more than flinging a coin to a beggar. It comes to see that an edifice which produces beggars needs restructuring. --Martin Luther King Jr.

      by Phoenix Rising on Tue Jul 19, 2005 at 08:11:35 AM PDT

      [ Parent ]

  •  Reverse psychology (none)
    I hope I'm not falling prey to some super-clever reverse psychology trap, but the righty blogs don't seem too pleased with her.
    From The Conservative Voice:

    Edith Clement Pro-Killing, Not Good for Supreme Court
    [...]
    America does not support murdering human beings, except for the theologically and politically liberal womb baby killers who have made that their litmus test for admitting judges.

    However, genuine Americans who are into a moral base do not agree with the liberals and so will work night and day to see to it that every pro-baby killing judge is dismounted. That of course accents those on the US Supreme Court.

    Okey-dokey then.

    Anyway, "an enemy of my enemy" and all, I feel alright about her.

    We knew that Bush wouldn't be appointing William J. Clinton or anything, so if we're dodging the theocratic bullet in favor of the corporatist one, I'll take that loss.

    It's not that the frying pan is better than the fire, but that [caution: pure speculation ahead] a Democratic President with a Republican Congress would have probably sold the left out for corporate America anyway.

    We're getting a slightly worse deal than we would have gotten but a much better deal than we could have.

    "what could possibly go wrong?"

    by maskedand on Tue Jul 19, 2005 at 07:41:59 AM PDT

  •  I was all ready to jump on whoever he nominated. (none)
    But I'm finding I can't work up a good righteous anger at this pick.

    She seems like a moderate conservative.  Definitely someone I can live with.

    Let's get back to beating up on turdblossom as quickly as possible.

  •  I am a personal injury lawyer and I read (none)
    Cases like Brown v. Parker all the time.  Clearly Clements sided with the employer in this case and not the injured worker.

    She overturned a jury verdict where the worker's credibility was the main issue.  This is usually not done and the one dissenter complained about it.

    But it was a close call.  The worker had a significant pre-existing back condition from two prior injuries which he did not disclose on his employment application and which made him more susceptible to serious future injury.  He ruptured a disc in his back on the job but this was only eight months after he began working there.

    There is an unwritten rule in worker's compensation law that a worker better be on the job for a number of years if he wants compensibility for a pre-existing condition that receives a re-injury.  

    If a worker has a pre-existing condition which is re-injured and he has only been with his new employer a short while, courts will usually craft a way to find that the employer was not responsible for it.  

    So, I can't say she was way out of the mainstream on this one.

  •  Doesn't make sense?? (none)
    Why would Bush nominate someone we "like"?

    Right now he needs to rally the troops behind Rove, Libby, et al...  Why would he alienate the religious right when he needs them behind him right now?  They are his base.  So why wouldn't he nominate someone controversial, who will be divisive and cause a huge battle that will shut down the Congress and drive a wedge between large segments of the population?  

    If there is no fight over his nominee then the Press will stay on the Rove story...  If there's a fight, then that will take center stage...

    I would be shocked if nominates this woman...  I suspect a much more conservative nominee.  

  •  Don't be surprised if ANY judge backfires on him.. (none)
    It is true that Supreme Court appointments are products of the political times. However, once affirmed, a Supreme Court justice is no longer a political position. Free from the contraints of nomination or re-election, many of the conservative justices that were feared for their 'judicial activism' have drifted much further towards the middle than was expected.

    The danger to any standing president is that there is nothing they can do to prevent moderacy once the confirmation has gone through. Removed the process, the politician can only sit back and hope that their golden goose behaves, but it has been all too common that no one appointed has behaved the way they are expected.

    Appointment to the Supreme Court removes many of the political strictures that are prevalent in other court systems. No elections, no popular opinion, the  judges are free to voice real opinions with a steadier hand. I cannot say that I always agree with what the Supreme Court says, but rarely have I found completely meritless the arguments of justices who dissent from my opinion.

    As an aside, I believe that Bush is the reason that Rehnquist has declined to resign. I honestly believe that in these final years, confronted with the thought of the Bush Administration tearing apart and politicizing what I believe to be the most moderate and rational of the three government branches, he has decided that it is better to stick it out and perhaps pass the responsibility to another president. If that is the case, I salute him, because if he was truly a cheerleader for this administration, he would retire and allow them to tear apart the institution he has loved for years.

    --------------
    Condemnant qui non intelligent.

    by cognizant on Tue Jul 19, 2005 at 09:25:46 AM PDT

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