I've seen quite a few stories indicating that Bush will nominate Edith Brown Clement (5th Circuit Court of Appeals) to replace O'Connor on the U.S. Supreme Court. Starchild has written a great overview diary on Clement
here.
Nevertheless, there seems to be precious little information about Clement floating around. As such, I had a look at a few of her opinions and dissents, and it seems to me that Clement is no moderate. In fact, she signed a dissent that would completely gut the Endangered Species Act. More below the fold.
The case is
GDF Realty Investments, Ltd. v. Norton, 362 F.3d 286 (5th Cir. 2004). There, a three-judge panel of the 5th Circuit Court of Appeals upheld a challenge to a determination that a species of cave bugs in Texas were protected under the Endangered Species Act. The developer, GDF Realty Investments, did not give up and sought to have the opinion reheard
en banc by the full Court. That request was denied, but Judge Edith H. Jones wrote a semi-scathing dissent, arguing that the decision to protect Cave Beetles under the Endangered Species Act violates the Commerce Clause. It is this dissent which Clement joined.
The attack on the Endangered Species Act on Commerce Clause grounds is a very important topic, and any Supreme Court nominee's beliefs on this issue should be held to intense scrutiny. This is merely another flavor of the "Constitution-in-exile" movement adhered to by various right-wing scholars and judges, many of whom believe that all New Deal and Great Society legislation was beyond the scope of Congress' authority under the Commerce Clause and should be declared unconstitutional.
To get a flavor of these views, here are the first two paragraphs of the dissent that Clement joined:
A majority of the court has refused to rehear this significant Endangered Species Act case en banc. I respectfully dissent. For the sake of species of 1/8-inch-long cave bugs, which lack any known value in commerce, much less interstate commerce, the panel crafted a constitutionally limitless theory of federal protection. Their opinion lends new meaning to the term reductio ad absurdum.
The panel holds that because "takes" of the Cave Species ultimately threaten the "interdependent web" of all species, their habitat is subject to federal regulation by the Endangered Species Act. Such unsubstantiated reasoning offers but a remote, speculative, attenuated, indeed more than improbable connection to interstate commerce. Chief Justice Marshall stated in Cohens v. Virginia, 19 U.S. 264, 5 L. Ed. 257 (1821), that Congress has no general right to punish murder or felonies generally. Surely, though, there is more force to an "interdependence" analysis concerning humans, and thus a more obvious series of links to interstate commerce, than there is to "species." Yet the panel's "interdependent web" analysis of the Endangered Species Act gives these subterranean bugs federal protection that was denied the school children in Lopez and the rape victim in Morrison. The panel's commerce clause analysis is in error.
This is something the Senate Democrats need to look into.