Which Edith Ends Up In The Bunker?

Now that it has been announced that President Bush will name his new Supreme Court nominee tonight, speculation is settling on the two Ediths: Edith Clement and Edith Jones, both of the Fifth Circuit Court of Appeals.

From what I've been able to pick up about Clement today, I've become convinced that she'd turn out to be a lousy choice. She has "David Souter" written all over her. Evidently, she has mostly practiced maritime law, so she has a sparse paper trail on hot-button issues. This, of course, makes her more easily confirmable than other nominees. It also radically ratchets up the chance that she becomes another Souter or Kennedy. Claims that she's a "federalist" mean little; remember, Sandra Day O'Connor is considered by many to be a staunch "federalist" as well.

A far better (though more difficult to confirm) choice would be Edith Jones. Her conservative, originalist bearings are much more well-documented. We'll see if the Bush Administration (already having evidently caved into the ridiculous "must-nominate-a-woman" affirmative action mindset) will have the guts to nominate a good woman.

Veteran pro-life philosopher and activist Hadley Arkes well describes the dilemma the Bush Administration faces with Clement (though he is willing to support her nomination):

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, O’Connor, Kennedy, and Souter.

For my part, I say "NO STEALTH CANDIDATES!" Have some guts, govern like you actually control all the elected branches of the federal government, and nominate someone who agrees with you. Let the liberals shriek. Who cares?

My prediction: It will be Clement. This administration has never fully understood what's at stake here. Bush's well-known willingness to nominate Alberto Gonzalez is proof enough of that. They'll go with the "confirmable candidate" under the justification that she'll have to be better than O'Connor, and they'll find themselves in the same position Poppy found himself in with Souter.

I hope I'm wrong. We'll see.