Strictly Speaking?

Rumor has it that President Bush could announce his Supreme Court nominee as early as today, and insiders are pointing to Judge Edith Clement of the Fifth Circuit Court of Appeals in New Orleans as the front-runner.

One of the frustrations I've had in this whole judicial process is the way words seem to be bandied about without any meaning. I don't know whether it's a failure of the media (or "legal insiders") to understand what the terms actually mean, or if there is simply a lot of obfuscating going on.

Clement is a case in point. I don't know anything about her yet. But a Washington Post story on her today hasn't helped me know her much better. Says the story:

Known as a conservative and a strict constructionist in legal circles, Clement also has eased fears among abortion-rights advocates. 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" and that "the law is settled in that regard."

It may not be the Post's fault. Everything they say may be true. But this description is contradictory nonsense. Either Clement is a "strict constructionist," or she believes that the Constitution contains a right to privacy in its so-called "eminations and pnumbras" that covers abortion. But she cannot have it both ways.

To be a strict constructionist is to deny that we can suddenly, 200-plus years down the road, find rights in the Constitution that no previous generation has ever found. And to believe that the Constitution implicitly contains a right to privacy that nobody discovered before the late 20th century is to jettison strict constructionism.

So which is it?

The only possibility for consistency between a strict constructionist approach and Clement's quotes from the article is if she was simply describing (without endorsing) the Supreme Court's current view. From the current Court's perspective, it is true that it "has clearly held that the right to privacy guaranteed by the Constitution includes the right to have an abortion." That is clearly the holding of the current Court. And in that sense, "the law is [currently] settled in that regard." So if she's merely describing the outlook of the current Court, there's no problem (though it would seem to be a bit of parsing worthy of Bill Clinton). But if she's describing her own views, she cannot by definition be a strict constructionist.

At the very least, more context for these remarks would be helpful.

When Sandra Day O'Connor is described as a "moderate conservative" and TIME Magazine can claim with a straight face (as it did a couple of weeks ago) that the current Court has no staunchly liberal voice on it, it's difficult to trust that the media knows or can correctly use the appropriate descriptive terms.