A Weblog of Centrist Voices in American Politics
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A Weblog of Centrist Voices in American Politics | |
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July 01, 2005A Sensible Choice?A previous thread has made a centrist case for the president to nominate my boss (a few times removed), Attorney General of the United States Alberto Gonzales, to succeed Justice Sandra Day O'Connor as Associate Justice of the Supreme Court. There are pros and cons to such a nomination, as comments on that thread expose. There are a host of possible choices from within the ranks of sitting federal and state judges and without. It seems unlikely that the short-list floated in the press for successors to Chief Justice William H. Rehnquist, being dominated by white men, continues to apply; indeed, nominating a white man to replace Justice O'Connor would not only send impolitic signals, but jeopardize the president's legacy in what may yet be his only Supreme Court nomination. But Mr. Gonzales is not the only non-"white male" possibility. A likely candidate? Judge Edith Brown Clement of the United States Court of Appeals for the Fifth Circuit. But what's the story on Judge Clement? Her Federal Judiciary Center biography says: Born 1948 in Birmingham, AL But that's just a bunch of facts. Yes, she's qualified for the job, but what's her judicial temperament? The Almanac of the Federal Judiciary maintains, among other things, feedback on judges from the lawyers who practice before them. The Almanac records these reactions: As a district judge, Clement received the following lawyers' evaluation in the Almanac: Lawyers interviewed gave Clement high marks for legal ability. "She is one of the brightest." "Her legal ability is at the top." "She is an excellent judge." "She is a very smart woman." "She is very bright." "She is great." "She is a good judge." "I'm impressed with her." "She is intelligent." "Her legal ability is high. She can read a law book." "Her legal ability is above average-to-excellent." "She has very high legal ability." "Her legal ability is fair." "She is conscientious." "She is a hard worker." "She is a good judge---intelligent, thorough and prepared." Lawyers interviewed said Clement is generally courteous, but can be curt with lawyers. "She is courteous to lawyers." "She treats lawyers appropriately, as long as they are respectful---but she doesn't tolerate any foolishness." "She is a nice person, but she can be tough." "She gets frustrated if you don't agree with her." "She is a little crisp in her treatment of lawyers." "She is a hard-nosed district judge." "She does not brook fools easily---you know where you stand with her at all times." "She is a tough cookie." "She will snap at you. She can be short tempered but it is usually justified." "She is a very tough cookie. She will put lawyers in their place." "She can be curt." "She is courteous generally, but can be curt to lawyers." "There is not a lot of jollying around in her court." "Her temperament can be stern. She doesn't suffer fools." "She is affable and courteous to lawyers, but she expects everybody to comply with the rules and the established procedures." "She is knowledgeable, tough, and demanding." "She can be tough on people if you don't follow the rules and do what you are supposed to do." Lawyers interviewed said Clement is a stickler for professionalism from lawyers. Lawyers also said Clement is strict about deadlines and following the rules and tends to be inflexible in scheduling. "She is very demanding." "Follow the rules, and don't come to her asking for relief---let the other side do that." "She runs a good tight courtroom." "It is a particular mistake in her division to do less than your best work." "If you try to finesse her with an argument, or fool her, you will lose credibility---once you lose it, you will have a hard time getting it back. Just make your best argument and stick with it." "She is flexible with scheduling." "She is a stickler for professionalism." "She is a stickler for rules and deadlines." "She's a stickler for professionalism from lawyers." "She is very, very strict." "She runs a very tight court. She is hyper- efficient. She moves her court very fast." "Don't repeat yourself." "Adhere to her time limits." "She will not stand for any bickering between lawyers." "She is inflexible with deadlines." "She is inflexible with scheduling." "She is a rule enforcer. She will grant JNOV and summary judgement." "She will control the case and the lawyers. She will sanction lawyers for violating her orders." Most lawyers interviewed said Clement sends cases to the magistrate judges for settlement. "Settlement issues are referred to magistrate judges." "She leaves settlement to magistrate judges." "I have never had her pressure me to settle a case." "She will help with settlement if the lawyers want her to. Otherwise, she will send cases to the magistrate judges or another judge." "She gets too involved in settlement and pressures the plaintiff." Plaintiffs' lawyers interviewed said Clement is pro-defense. "She leans toward the defense side." "She is far too conservative---very pro-defense." "She is conservative." "She is pro-defense." "She is usually unbiased in civil cases, but she may lean toward the defense." "She leans toward civil defendants." Most civil defense lawyers interviewed said Clement leans toward the defense in civil cases. "She is conservative in her judicial philosophy." "She is evenhanded." "She is unbiased in civil cases." "She leans toward the defense." "She leans toward civil defendants." "She is defense-oriented." "She is conservative---pro-defense." Criminal defense lawyers interviewed said Clement is pro-government. "She is pro-government in criminal cases." "She is conservative." "She gives a fair trial, but she is pro-government." "She is more sympathetic to the government." "She leans toward the government." Lawyers said Clement follows the guidelines in sentencing, but can be tough. "She is tough in sentencing but is still on the low end. If there are enhancements she is liable to give them." "In terms of sentencing, she can be tough." "She is a tough sentencer" "She is tough in sentencing." "In sentencing, she follows the guidelines down-the-line." "She follows the guidelines." In decisions this year, Judge Clement has written opinions to (1) reinstate the sentence of a police captain convicted of civil rights violations arising from use of excessive force (United States v. Harris, 408 F.3d 186); (2) extend the customs-search exemption to the 4th Amendment probable cause requirement to include luggage leaving the country (United States v. Odutayo, 406 F.3d 386); (3) admit firearm evidence acquired during a protective sweep & search by police of the home of a defendant known to police to be a violent gang member (United States v. Waldrop, 404 F.3d 365); and (4) dissent from an opinion affirming the dismissal of a conviction of a doctor's office manager for aiding and abetting the doctor in submitting false claims to health insurers (United States v. Tarango, 396 F.3d 666). Obviously, it would take much longer to do a thorough review of her positions over the past thirteen and a half years, and to expand that look beyond her criminal cases, but that's a brief look at one of the few women believed to be on the president's short-list for an O'Connor vacancy. Posted by The Jaded JD at July 1, 2005 05:38 PMComments
I can't believe I actually beat everyone to getting Clement's name up in the earlier thread...she seems kinda obvious to me as being on the short-short list for the O'Connor vacancy. Posted by: Tully at July 1, 2005 05:57 PMI fail to see what possible relevance the gender and ethnicity of the best-qualified candidate is. If the best candidate for the job is hispanic, great. If they're black, great. If they're a woman, great. If they're a female black/hispanic mix, great. But, if they're a WASP, not a whit more nor a whit less great. Posted by: Simon at July 1, 2005 07:05 PMSimon, You are right. However, the world we live in requires symbolism. GHWB appointed an African American Justice to replace an African American, Bill Clinton appointed a tiny little white man to succeed another white man. (Sorry!) Bush realizes this, and judging by the make up of his cabinet, I doubt he'd stray from the trend. I have seen Judge Clement mentioned in a few articles, and I agree she may be an good choice for the President. Probably one of the most compelling things about her is that she hasn't written opinions on too many controversial cases, making it more difficult to pin her down on a litmus test. "She can be tough on people if you don't follow the rules and do what you are supposed to do." Sounds like my idea of a good judge. :) Posted by: AR at July 1, 2005 07:42 PMSimon, I didn't say ethnicity or gender had anything to do with who the best candidate is. I said nominating a white male to fill Justice O'Connor's seat would be appear impolitic and forfeit a presidential opportunity to leave a legacy of appointing someone, for example, of an ethnicity not yet represented on the Court. Neither politics nor legacies often have much to do with the best candidate. Posted by: The Jaded JD at July 1, 2005 09:21 PMBecause "the world we live in requires symbolism" doesn't cut it for me, I'm afraid. ;) I think Ed Whelan over at NRO hit it on the head: "I hope that President Bush focuses on choosing the best candidate, not on satisfying some diversity checklist." The fact that such considerations are even in play are insulting and reek of affirmative action. It seems to me that, Judge Garza is perfectly well-qualified to ascend to SCOTUS without being tarred with the insulting stench of quotas. It also seems to me that, by contrast, A.G. Gonzales would be a David Souter all over again, no Republican president should nominate him, no Republican senator should vote for him, and the fact that he's hispanic - or the President's friend, for that matter - should not mitigate that matter in the slightest. As I've argued before - when are we going to get past making decisions based on the color of people's skin? Posted by: Simon at July 1, 2005 09:33 PMI found this interesting, a flashback to Ruth Bader Ginsberg's hearings, when the GOP minority in the Senate did what today's Dems will surely not do, and gave a pass to a nominee that was bound to be trouble: http://corner.nationalreview.com/05_06_26_corner-archive.asp#068148 Republicans also chose not to oppose Ginsburg even though she refused to answer dozens of questions during her confirmation hearings. Among others, she declined to give her views on Roe v. Wade, on the Second Amendment, on the death penalty, on the Voting Rights Act, on race-based congressional redistricting, and on adoption rights for gay couples, among many other issues. At one point in her hearings, Republican Sen. Strom Thurmond told her, "In preparing these questions or any others I may propound during the hearings, if you feel they are inappropriate to answer, will you speak out and say so." On another occasion, Thurmond said, "I will not press you to answer any that you feel are inappropriate."I'd like to see today's minority take a pass on answers to questions regarding "Roe v. Wade, on the Second Amendment, on the death penalty, on the Voting Rights Act, on race-based congressional redistricting, and on adoption rights for gay couples". Posted by: Simon at July 1, 2005 10:02 PM Tully, You're right, you broke the story for Centerfield purposes. Sorry, I had a little more research to do to get something up. One does wonder, though, why she's flying under the radar: is because she's unexpectedly conservative (and therefore the Administration is protecting her from the left) or because she's unexpectedly reasonable (and therefore they're protecting her from unsubstantiated "Clement would just be another Justice Souter" nonsense)? And speaking of the latter, what exactly is the basis for these comparisons of Gonzales to Souter? The fact that Gonzales hasn't been militantly trumpeting the claims of social conservatives? I have my own reservations about the boss, but I posted them on his thread. Posted by: The Jaded JD at July 1, 2005 10:19 PMI threw out a bone, JD, you offered up a meal! I'm not sure why she's under the radar, other than being under-published and at the back of the list. But I suspect she's moved up some since then. Posted by: Tully at July 1, 2005 10:36 PMSouter is a Souter because he is a liberal justice appointed by a conservative, who consistently votes for affirmative action and abortion. Gonzales would be a Souter because he would be a liberal justice appointed by a conservative, who would consistently vote for affirmative action and abortion. He would, we assume, have voted for Raich, and I would not be surprised if he had voted for Kelo. He might have voted against Roper now, but given ten years on the Court, I think he's a prime candidate for Anthony Kennedy syndrome. He might have cut it as an appointee for Bill Clinton 12 years ago, but for Republicans - moderate or otherwise - what does Gonzales (and this goes for Ed Prado, too) have to offer? He isn't an originalist, as I (and a few others) want; he isn't a conservative, as the party's base wants; what possible purpose - other than Whelan's checklist - could his nomination serve? Posted by: Simon at July 1, 2005 10:40 PMNuts - I forgot to copy the bottom line into the previous post. It should have concluded: This - the future of the Supreme Court - is precisely the reason a lot of people voted for Bush. If Bush nominates Gonzales, he will tell the GOP's base - a base which I have little in common with, I should admit - that they should stay home next time. I've heard it remarked that GW is what GHW would have been if he'd had the opportunity to watch HIS dad do the job and make some mistakes; here's where we find out if that characterization is correct. Posted by: Simon at July 1, 2005 10:43 PMClement's name is the only one on the "watch list" that has not been snapped up for a "Stop so-and-so.org" registration. All the others (STOP ESTRADA.ORG, STOPGARZA.ORG, etc.) were bought up by People for the American Way, National Abortion Rrights Action League, and the Leadership Conference on Civil Rights months ago. Posted by: Tully at July 1, 2005 11:03 PMThe whole premise of this thread is depressing. J.D. begins his evaluation of candidates by immediately disqualiflying those of a certain color and gender from consideration. Shouldn't we be trying to discourage this mentality in government and elsewhere? Posted by: Susan at July 2, 2005 12:07 AMSimon, Your proffered "explanation" for comparing Gonzales to Souter fails because it remains conclusory. "Gonzales would be a Souter because he would be a liberal justice appointed by a conservative, who would consistently vote for affirmative action and abortion. He would, we assume, have voted for Raich, and I would not be surprised if he had voted for Kelo. He might have voted against Roper now, but given ten years on the Court, I think he's a prime candidate for Anthony Kennedy syndrome." (emphasis added). Yes, damning allegations indeed (from a certain perspective), but where's the substantiation for them? Susan, It seems to me that most of the people who really crave a conservative nominee react negatively to the suggestion that the president would be politically unwise to name a white male for Justice O'Connor's seat--as opposed to the Chief Justice's seat. It's almost as if they're afraid that no one who is not a white male will give them quite what they're looking for (which should give them pause in the first place). Indeed, it's almost as if they'd been so programmed to defend the short-list announced in the press over the past several weeks during speculation about the Chief Justice that they're horrified by any suggestion that that short-list may not be the real short-list. I don't believe white males are a very under-served constituency on the Court, either historically or among its present membership. I'm not saying that there are quotas for filling SCOTUS vacancies--only that, obviously, the Administration has indicated often, and confirmed in the press, that it aims to increase diversity on the Court. My post proceeds from the position that, when an Administration serves its acknowledged goal of increasing diversity on the Court, it does not name a white male to fill a seat vacated by a non-"white male." Posted by: The Jaded JD at July 2, 2005 01:43 PMUpdates: Tom Goldstein suggests another reason conservatives want a male to succeed Justice O'Connor: if that male, this time, is not Alberto Gonzales, it makes it difficult for the president to nominate Mr. Gonzales to succeed the Chief Justice. Bill Kristol of the Weekly Standard suggested Judge Clement by name in an interview this morning on NPR's Weekend Edition Saturday. Posted by: The Jaded JD at July 2, 2005 02:16 PMI suppose I should speak up since I offered the "symbolism" comment. I was not--and would not--ever endorse an affirmative action approach to court vacancies. What I did mention; however, was that the world in which we live expects symbolism. Merely observing it is in no way endorsing it. Posted by: AR at July 2, 2005 02:53 PMJD titles his article, "a sensible choice". He should have instead titled it, "a racist choice", because race is foremost in his criteria of who should be nominated to the supreme court. That's senseless, not sensible. The idea that a presidents legacy is "jeopardized" by whatever race and sex his nominees happen to be is just pathetic. Does the race and sex of what people happen to be really matter more than what they believe and accomplish? Insanity. "It's almost as if they're afraid that no one who is not a white male will give them quite what they're looking for (which should give them pause in the first place)." JD projects racism on those who object to focusing on racial criteria to determine judicial candidates. He seems to be saying that being against racism, is racist. He suggests that those who object to white males being ruled out, would only accept white male candidates. That is either an error in logic, or an unfair attempt to demonize those who object to racial quotas. Race should have no relevance in determining nominees to judicial office. Racial bean counting perpetuates and encourages racist thinking. If Bush and other leaders support or acquiesce to the mentality that certain seats belong to certain races, it will have negative consequences for our society. Posted by: Susan at July 2, 2005 05:10 PMSusan, Judge Edith Brown Clement, about whom I've written, is Caucasian. If anything, then, the article is about gender and sexism, not racism. But it isn't about that: it's about an apparently worthy jurist who may become a nominee to the Supreme Court of the United States. The fact that the president is unlikely to name a white male replacement to Justice O'Connor isn't my fault--it's simply a political fact. The fact that doing so would give journalists, historians, political pundits, and innocent bystanders cause to wonder whether there weren't any non-"white males" available of equal credentials isn't my fault--it's simply a political fact. Of course the president is capable of grasping this nettle and bringing it onboard. But Karl Rove is smarter than that. At the risk of seeming to be more provocative than I intend, one almost has to respond, "Methinks the lady doth protest too much" with your strident rebuttal to an imagined charge of racism. Posted by: The Jaded JD at July 2, 2005 09:59 PMAt some point we need to stop hiding behind "political facts", and have the courage to stand up for what is right and wrong, even at some political cost. It is wrong to discriminate in favor or against a potential judicial candidate based on their sex or race. It is wrong for the media, the electorate, and politicians. It is wrong for us to pander to or accomodate such discriminatory views in others. Posted by: Susan at July 3, 2005 05:29 AM"I found this interesting, a flashback to Ruth Bader Ginsberg's hearings, when the GOP minority in the Senate did what today's Dems will surely not do" Man, you're right. I mean, it's not like Republicans have ever held up judicial nominations for years on end or anything. Posted by: plunge at July 3, 2005 01:58 PMIt is wrong to discriminate in favor or against a potential judicial candidate based on their sex or race. I agree. Tell it to the Senate. Otherwise, what JD said. Posted by: Tully at July 3, 2005 03:17 PMIs it too naive of me to think that by eliminating all political pressure to appoint someone who isn't a white male, the result will likely be a court of all, or at least almost all, white males? After all, it took about 180 years for the first non-white male to be appointed, and almost 200 years for the first woman. Were we color and gender blind then? Were white males the only ones qualified during this long period? And if that was so, would it have had anything to do with the fact that women and non-whites generally were not allowed admission to law schools? Posted by: tim at July 5, 2005 09:45 AMTim, Were white males the only ones qualified during this long period? And if that was so, would it have had anything to do with the fact that women and non-whites generally were not allowed admission to law schools?What people must keep in mind that, for all the big, headline cases the Court deals with - which are maybe five or six per term - the vast majority of the Court's work is lawyer's work. It's about mind-numbingly complex - and boring - questions of legal details. Take a look at SCOTUSblog's term summary if in doubt. Once you understand what the court really does, you can see why "Supreme Court Justice" is predominantly a lawyer's job. A non-lawyer can probably do the job - and they have in the past - but they can never, almost by definition, be better qualified than someone who's been through law school. Okay, so once you know it's a lawyer's job, you can obviously see that the best candidate for that position will be a lawyer, and it follows that any restriction on entry to law school is going to restrict the available pool of well-qualified candidates. So, if only white males were allowed access to law school during that period, then it follows that only white males will have been best-qualified for SCOTUS. Therefore, the palliative to the gender and ethnic diversity of SCOTUS is simple: remove law school admissions discrimination, and when you have a vacancy, and if the best-qualified candidate is not a white male, appoint the best-qualified candidate. Supreme Court justices swear an oath to administer "justice without respect to person"; the 14th Amendment forbids government from racial discrimination. Thus, if the Court is to hold to its constitutional role, and to their oaths, there is no possible value or interest in having a "diversity" criteria for the Supreme Court. Such criteria can only be useful if you think that the Court should play a role in social policy - a role which I deny it has any right to play. Posted by: Simon at July 5, 2005 02:31 PM |
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