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July 19, 2005

Is is Clement?

The buzz around the rightwing is that Bush's choice for the Supreme Court is Fifth Circuit Judge Edith Clement-Brown. I actually first heard this two weeks ago from a former clerk of one of the current Justices, so I was a bit prepared.

So how bad would she be? She qualifies as a "stealth candidate" in having fewer published views than some alternatives, but the evidence is that she's a hard right judicial activist, especially on the issue of gutting the Congress's regulatory power in the name of "federalism." As Jeffrey Rosen in this article details:

Everything about her record suggests she would enthusiastically support the federalism revolution. This year, for example, a group of Texas developers challenged the constitutionality of the Endangered Species Act after the U.S. Fish and Wildlife Service, in an effort to protect a rare species of underground bugs, denied them a permit to develop a shopping mall. The Texas appellate court rejected the challenge, but Clement joined a blistering dissent by Judge Edith Jones (another possible Bush Supreme Court nominee) criticizing the panel for crafting "a constitutionally limitless theory of federal protection." Taken to its logical limits, the Constitution in Exile would call into question not only environmental protections but workplace regulations like the Occupational Safety and Health Act.
SimilarlyPeople for the American Way has this site up on Clement and details that she supported radically restricting Congress's jurisdiction over criminal law involving theft and robbery:
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.
On the same page, PFAW documents her hostility to consumers and to juries having the right to assess damages against corporations who harm the public:
This case concerned a truck accident involving an eighteen-wheeler tractor trailer...the jury found the truck company and driver liable and awarded damages, which included $200,000 each to the estates of Becky and Kallie Vogler for their pain and mental anguish prior to death, as approved by the trial court...the majority reduced the award to Mrs. Vogler’s estate to $30,000.
So even where damages are hardly astronomical -- a few hundred thousand to compensate for the death of two people -- Clement's instinct is to second-guess juries in favor of corporate profits.

And take rightwing's endorsements, which say a lot. In this National Review article , Hadley Arkes, one of the pro-life movement's top intellectuals, argues:

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... Just whether or when Roe v. Wade is actually, explicitly overturned may cease to matter quite as much. For in the meantime, the public would have the chance to get used to a continuing train of laws restricting and regulating abortion.

Now, as folks who read this blog know, I might be favorable to a conservative Justice who believed in real judicial restraint, including weakening Roe, but if that hostility to Roe is combined with hard right judicial activism aimed at dismantling the democratic power to regulate corporations, that is the worst of all worlds. And Clement could likely be that.

More below the fold:

Bad on Labor Rights:  In Avondale v. Davis, Clement argued that attorneys fees could be cut as "excessive" where court awards are low.  

The reality is that economic recovery under workmens comp and other labor laws are often very small for low-paid workers, since they don't make that much to being with and damages are measured against ones earnings, so the potential costs of lawyers fees are about the only incentive companies have to settle cases.  With this kind of standard, employers would have every incentive to stretch out legal proceedings, knowing no poor plaintiff could hire a lawyer who knew they'd have no ability to recover their legal costs.

Weakening American With Disabilities Act:  In Blanks v. Southwestern Bell, Clement wrote a decision denying a right of an HIV suffer from even going to a jury to argue his employer refused to accomodate his disease-based disability and would only offer him an alternative job at much lower pay, arguing that HIV status did not constitute a disability under the ADA.

Posted by Nathan at July 19, 2005 11:32 AM