What if it's the other Edith?

The nomination of Edith Clement wouldn't offer either side much reason to get excited. The nomination of Edith Jones would.

Published July 19, 2005 9:54PM (EDT)

ABC and CNN are both backing away from speculation that George W. Bush will nominate Edith Clement to the Supreme Court, and the folks over at the Republican blog redstate.org say that Clement's vacationing in Wyoming today anyway.

So who is it, really?

There's another Edith on the U.S. Court of Appeals for the 5th Circuit, and Democrats wouldn't be as accepting of her nomination as they might have been -- and maybe still will be -- about Clement's. As we've noted before, Edith Jones, who was nominated to the 5th Circuit in 1985 by Ronald Reagan, is a favorite of the Christian Legal Society, and it's easy to see why: She has made it clear that she's interested in revisiting and almost certainly reversing Roe vs. Wade.

In a 2004 opinion, Jones said that advances in science make Roe's viability-based reasoning obsolete. "Neonatal and medical science ... now graphically portrays, as science was unable to do 31 years ago, how a baby develops sensitivity to external stimuli and to pain much earlier than was then believed," she wrote. "If courts were to delve into the facts underlying Roe's balancing scheme with present-day knowledge, they might conclude that the woman's 'choice' is far more risky and less beneficial, and the child's sentience far more advanced, than the Roe court knew."

The abortion issue isn't the only one on which Jones has made her views known. In a recent interview with the American Enterprise Online, Jones said that "religion is the best way" to teach moral values, that curbing frivolous lawsuits through tort reform is "a very important goal," and the Democrats have turned the judicial confirmation process into "trench warfare."

Although Republicans will argue that Democrats have no right to ask Bush's nominee about his or her views on future cases, Jones hasn't been shy about offering up her views on cases that have come before. She said the Supreme Court is guilty of "overstepping its bounds" in "pornography cases, the cases involving free speech that included those where people were allowed to spout the 'F' word in public venues, [and] the criminal procedure decisions which allowed many, many guilty people to go free because of rights that justices discovered in the Constitution for the first time in its two centuries of existence."

Jones says that the Supreme Court has, in many cases, relied on "fatally flawed philosophical premises not well tested in actual society." Roe vs. Wade is, of course, her Exhibit A. In her 2004 opinion, Jones says, she was "trying to point out that by constitutionalizing the right to abortion, the Supreme Court had removed from the ordinary political processes any debate in which facts about prenatal advances, or health effects on women, could be heard and taken into account. In fact, the court's exceptionally broad ruling removed fact-finding processes even from the court's own debates. Facts, I concluded, no longer matter to the Supreme Court in certain cases."

By Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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