And/but from the warrens of the Department of Justice to the halls of the Hill to some of the smarter conservative websites LINK, the buzz this morning is all about Judge Edith Brown Clement.
There is no official comment or confirmation from anyone who really knows, though some folks in a position to be among the first told are starting to tell us that she is the pick.
We can report, based on independent sourcing, that she sat down privately with President Bush at the White House within the past few days.
It is entirely possible that all this buzz is wrong and that Clement was, in fact, interviewed and NOT chosen . . . and was informed about not being chosen . . . which fed all this . . .
But that is NOT what the buzz sounds like to our veteran ears. At this writing, no one else is known to have been interviewed, although, as the President himself said, not everyone would require such a meeting.
(Early CW on Clement: The less known of the two Ediths. Easily confirmable. A Southern charmer. A lack of a paper trail. Pro-business conservative. Sympathetic to civil, but not criminal, defendants when she was a district court judge. Conservative activists not sure of her stance on substantive due process and/or Roe v. Wade.)
And ABC News' Ed O'Keefe reported last night that Senator Arlen Specter (R-PA), late for the annual Santorum-Specter staff softball game, confirmed that he met with President Bush regarding a potential Supreme Court nominee.
Specter refused to provide details of the meeting but strongly hinted that a final decision has been made.
Specter received the "invitation" to the meeting yesterday afternoon and initially declined due to the aforementioned softball game.
Apparently, the White House made it clear he should attend the meeting and the Chairman of the Judiciary Committee changed his plans.
Specter refused to say if any other congressional members were at the meeting and did not outline its length.
When asked about timing, Specter only smiled but reminded the ABC and CNN cameras present that his last chemotherapy treatment is Friday and today is Monday (i.e., Tuesday-Thursday are the dates to watch).
At that point, a senior member of Specter's staff commented, "We'll be in early tomorrow."
Another item: Attorney General Alberto Gonzales cancelled a planned visit to the US Attorney's office in Boston yesterday and sped through an appearance in Portland, Maine to return to Washington for hastily schedule meetings. (He was also seen leaving the White House at 8:16 am ET this morning.)
Let's be frank: it is very hard to imagine that the Democrats would filibuster Judge Clement, or that any more than a handful of the Republican Gang of Seven wouldn't vote for the nuclear option to quash said filibuster.
Aside from Judge Michael Luttig, who has turned into the left's do-or-die bugbear, or Edith Hollan Jones, who has a long record of opposition to Roe, we don't think the Dems will be spoiling for the fight in the end.
Mere ideological disagreement won't be enough to sustain a filibuster, so if the left is aghast at the prospect of a nominee being confirmed, Republicans fear they will dig for dirt to tar the pick personally.
The only way, in this scenario, that Democrats can successfully stop a nominee is to raise substantive questions about their ethics.
Edith Brown Clement Age: 57
Graduated from: Tulane Law School.
She clerked for: Judge Herbert W. Christenberry.
She used to be: a judge on the U.S. District Court, Eastern District of Louisiana.
She's now: a judge on the U.S. Court of Appeals for the 5th Circuit (appointed 2001).
Her confirmation battle: Clement doesn't provide much ammunition for opposition groups, but perhaps not much for conservatives to get excited about either. She hasn't written anything notable off the bench (or at least nothing that's come to light yet), and most of her judicial decisions have been in relatively routine and uncontroversial cases.
Civil Rights and Liberties
For a unanimous panel, allowed a plaintiff who sued the police for violating his right to due process to proceed with his claim that the officers who arrested him used excessive force when they allegedly injured him by slamming the door of their car against his head. Reversed the district court's finding that the plaintiff could also sue for unlawful arrest and excessive force involving the use of handcuffs. (Tarver v. City of Edna, 2005)
Environmental Protection and Property Rights
Voted for the 5th Circuit to rehear a decision blocking developers from building on a site where six endangered bug species lived in a cluster of limestone caves. Clement joined a dissent that argued that the decision's rationale for protecting the bugs—to preserve the interdependent web of species—bore no relationship to Congress' power to regulate interstate commerce. (GDF Realty Investments v. Norton, 2004)
Criminal Law
For a unanimous panel, rejected the claim of a man flying to Nigeria that his luggage was unlawfully searched at the border. Clement ruled broadly that customs inspectors need not have probable cause to search the bags of people who are leaving the country. (U.S. v. Odutayo, 2005)
Agreed with a unanimous panel that an asylum applicant who was 20 minutes late to a hearing because he'd taken the wrong highway exit should not have been ordered deported in absentia and was entitled to a new hearing. (Alarcon-Chavez v. Gonzales, 2005)
Habeas Corpus
Over a dissent, ruled that a death-row inmate who claimed to be mentally retarded was entitled to a lawyer to develop that claim in a habeas petition. Clement's ruling followed the Supreme Court's 2002 decision barring the execution of the mentally retarded. She followed up with a second opinion that limited the significance of her ruling by stating "this is a fact-bound case." (Hearn v. Dretke, 2004)
For a unanimous panel, reversed a decision of the district court finding that a police officer convicted of civil rights violation, for hitting a drunk suspect in the head with his baton, was entitled to a new trial because his lawyer was ineffective. The officer argued that his lawyer erred by failing to call character witnesses to rebut testimony that he'd complained about the need to control Mexicans in the United States. Clement said the rebuttal evidence would have been irrelevant because the officer was not charged with a hate crime. (U.S. v. Harris, 2005)
Damage Awards
Over a partial dissent, in reviewing a jury verdict in favor of a man whose wife and 3-year-old daughter were killed in a car crash, 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. (Vogler v. Blackmore, 2003)
