"Get your facts first, and then you can distort them as much as you please." (Mark Twain)

Tuesday, July 19, 2005

Here Come de Judge 

Allow me to be the first second 1,763rd blog to report that the Boy King will announce his nominee to replace Sandra Day O'Connor at 9:00PM EDT tonight, and that Edith Brown Clement is widely presumed to be that nominee.

I know very little about Clement, but there are some good discussions of her background at DKos diaries here and here. Short version of the consensus: She's a conservative (a given, since she comes from the Fifth Circuit), but not an American Taliban wingnut. She's staunchly pro-business and pro-federalism, but apparently unlikely to tip the balance of power against Roe v. Wade.

She has taken some heat for opinions that, on the surface, look bad - among these are In re Monumental Life Ins. Co. (she would have denied class action status to black plaintiffs alleging that they were charged higher premiums than similarly situated whites), and Volger v. Blackmore (she authored majority opinion reducing jury award for pain and suffering damages in an auto accident that killed a woman and her three-year-old daughter). These opinions have been portrayed, respectively, as being racist and inhumane, but (from a lawyer's point of view) the characterizations may not be fair. Monumental actually concerned a fairly technical question of class certification, and Volger arguably followed applicable case law to the effect that the award was unavailable where the plaintiff could not show that the deceased actually suffered (there was substantial evidence that death was instantaneous). And, as far as Clement's strict position on federalism (a particular problem for the good folks at People For the American Way) - well, I actually part company with many of my liberal brethren in this area, believing as I do that limited federal power is an important constitutional principle that works to the benefit of liberals as often as it works to the benefit of conservatives. (I would not, however, go so far as to hold that Congress had overstepped its authority under the commerce clause by drafting the Endangered Species Act so broadly as to protect insects.)

Clement may not be my idea of a great, or even good, nominee, but she is certainly less frightening at first blush than someone like Janice Rogers Brown. Her appointment may well nudge the Court a bit to the right, but it does not appear that she represents a major victory for the wingnut base. In a time when progressives can hope for little better than mere damage control, Clement's nomination looks like "mission accomplished."

Update: It appears as though it may not be Clement after all....




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