Justice Clement?

Rumors have it that Judge Edith Clement-Brown of the U.S. Court of Appeals in New Orleans will be Bush’s nominee for the Supreme Court after he announces tonight. Bush v. Choice is not pleased with her record on abortion, although she has stated that the Supreme Court “has clearly held that the right to privacy guaranteed by the Constitution includes the right to have an abortion.” (Then again, Roe v. Wade isn’t at stake with this pick, and there’s no telling how she’ll vote on various restrictions.) And it seems that conservatives are getting the secret hand signal letting them know that Clement is okay.

Beyond abortion, though, her record is a bit of a mystery. Jeffrey Rosen has pointed out that she seems likely to support the conservative “federalist revolution”—which, taken to the extreme, could limit the ability of Congress to do things like lay down environmental protections or issue workplace regulations—and is probably more of an activist, one who would cut through established precedent, than a “principled conservative.” I think Jack Balkin is probably right that Bush may be making a shrewd move by picking someone who, nominally, supports abortion rights but is, in fact, ready to roll back a slew of lesser-known protections. Then again, she might not even be the pick, so I guess there’s no sense in going overboard just yet.


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