It is an interesting coincidence that two of the judges mentioned as likely successors to Justice Sandra Day O'Connor are women named Edith who currently serve on the Fifth Circuit Court. They are Judge Edith Hollan Jones and Judge Edith Brown Clement. Professor Hadley Arkes comments on the merits of these two fine candidates.

Edith Jones has the sharper definition as a conservative, tagged as pro-life in her perspective, and she is bound to draw the heaviest fire. Joy Clement, in contrast, would be a harder target: Her own specialty was in maritime law; she has not dealt, in her opinions, with the hot-button issues of abortion and gay rights; and she has stirred no controversies in her writings or in her speeches off the bench. She would be the most disarming nominee, and it would be a challenge even for Ralph Neas or Moveon.org to paint her as an ogre who could scare the populace. The main unease would come in the family of conservatives: If people donÂ’t know her personally, they will suspect another Souter or Kennedy. For they have seen the hazard in relying on the assurances given even by the most reliable conservatives, who claim they can vouch for the nominee.

I would vouch for Joy Clement myself, and I would vouch for Edith Jones. But as I commend Joy Clement, I open myself to these searching questions from friends who have suffered the lessons of experience: If we know little, really, about her philosophy or jural principles, how do know that she will not alter when she is suddenly showered with acclaim from the law schools at Harvard and Columbia? Will she not be lured as she is praised in measures ever grander, as a jurist of high rank, as she “grows” with each step ever more “moderate” and liberal? Those who commend her face the risk of joining the ranks of those who offered assurance on Kennedy and Souter, and lost forevermore their credibility.

But even more unsettling than that, the willingness to go with the candidate without a crisp, philosophic definition may mark the willingness to act, once again, within the framework defined by the other side: It begins with the reluctance to admit that we have ever discussed the matter of abortion with this candidate, or that she has any settled views on the subject. In other words, it begins with the premise that the right to abortion is firmly anchored as an orthodoxy; that those who would question it are unwilling to admit in public that they bear any such threatening doubts. The willingness to accept premises of that kind, as the framework for confirmation, may account for a Republican party that has brought forth as jurists the team of Stevens, OÂ’Connor, Kennedy, and Souter.

If the administration finally comes forth with the name of Edith Jones, that will be taken as the clear sign of a willingness to break from those debilitating premises that signal, in advance, the eagerness to back away from an argument. But on the other hand, 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

In other words, Judge Jones would be a candidate with a clearly defined philosophy who would be a direct challenge to those on the lLeft who do not want a "conservative extremist" (as defined by the Left, meaning not a supporter of Roe), while Judge Clement would be an easier candidate to get by the Left but might be a more difficult candidate to sell to the Right because of her lack of a clear public position on the issue of abortion.

Professor Arkes also points out that there is an additional, symbolic reason for replacing O'Connor with a conservative woman.

When the Court begins to explain again the grounds for protecting children in the womb, that account may produce a more lasting resonance if the explanation comes from a woman. At the same time, we could only run the risk of feeding the worst clichés in our politics if the only woman on the Court was Ruth Ginsberg, and if the Voice of the Woman on the Court spoke only in the accents of the Left. The commentators who have been clamoring these days for “balance” on the Court have not exactly been clamoring for a balance between women. And yet it would be no descent into a low politics to show that a woman’s perspective may express itself in an attachment to the moral tradition and to a conservative jurisprudence.

I agree. To let an ultra-liberal former ACLU attorney be perceived as the "voice of women" on the court is a political mistake. Worry about making that precedent setting appointment of a Hispanic later -- select a good conservative woman now. And I'll be happy to take either Edith.

Posted by: Greg at 06:18 AM | Comments (23) | Add Comment
Post contains 854 words, total size 5 kb.