Frist and South Carolina Conservatives (The State)

Sen. Bill Frist’s turnaround on embryonic stem cell research could come back to haunt him if he aspires to the presidency, S.C. conservatives said Friday.

That’s because a position that draws rave reviews from the likes of Democratic Sen. Edward Kennedy is liable to generate the opposite reaction in conservative-leaning Republicans who vote in the state’s primary elections, said Oran P. Smith, president of the Palmetto Family Council.

“We’re disappointed to hear that he has taken this position. ... We want to defend a culture of life,” Smith said. “We feel that destruction of embryos is destruction of life.”

Frist — who logged visits to South Carolina in May and June — seems to be flouting the GOP tradition of waging a conservative campaign early and moving to the center later, Smith said.

“First, he has to be nominated,” Smith said. “I think he has harmed himself with perhaps a larger group than he realizes.”

Holly Gatling, who heads South Carolina Citizens for Life, said her group supports medical research using stem cells from adults and from umbilical cord blood.

But in embryonic stem cell research, “a human life is destroyed for lethal medical experimentation that’s not promising,” she said. “Senator Frist is simply wrong.”

Gatling said it’s early to assess Frist’s chances as a presidential candidate but that his new position on stem cell research will raise questions among S.C. conservatives.

“The question I would ask him is, when does he believe that killing an innocent human life is not wrong?”

— Linda H. Lamb

Out of the Ballpark

First of all, I must apologize profusely for my report of the possible selection of Edith Brown Clement. Though I underlined in my message that it was mere speculation, it was premature to include a photograph. That, added to the suggestion that Chief Justice Rehnquist might retire undermines my credibility. I will be reluctant in the future to rely on even the best sources (in those cases USA Today, The Washington Post [yes, I know], and Robert Novak).

Now for Judge Roberts. BIO

1. At 50, he is relatively young. With Alberto Gonzales (49) and Michael McConnell (50) he was among the younger judges being considered for the post. The only thing better than being a solid choice is being a young, solid choice.

2. He is experienced. He is a "lawyer's lawyer" according to Manuel Miranda. Roberts has argued 39 cases before the high court alone, where he won 25 (64%). Most of the cases were business-oriented where he argued, for instance, against radical environmental protections.

3. He is a Rehnquist, not a Scalia...and surely not a Souter. The other strong conservative possibility for the Bush nod, J. Michael Luttig of the Fourth Circuit, who clerked with Scalia, has a longer paper trail and is much more aggressive in style. Roberts seems to be in temperament more like his mentor, Rehnquist, for whom he clerked. His opinions (see CASES), even in dissent, are written in a collegial but forceful style. One of his most interesting decisions was the case of a 12-year-old convicted of eating a french fry in a D.C. Metro (subway) station. Roberts voted to uphold the conviction.

4. He has bipartisan support (including Bill Clinton 's Solicitor General) and cleared the Senate 99-0 in 2003. The Gang of Fourteen will find it hard to cite the "extraordinary circumstances" called for in their pact as an excuse to filibuster.

5. Roberts is a family man and it is reported that his wife has been involved in Feminists for Life, an organization made famous by its honorary chairwoman, Everybody Loves Raymond's Patricia Heaton.

6. In brief written during his time with the Justice Department of George H.W. Bush (41), he and his co-writer argued that Roe should be overturned. He also urged the federal government in one case to intervene on behalf of the pro-life Operation Rescue. But, during Senate hearings for the D.C. Appeals Court slot, Roberts said Roe was settled law.

Note: My reaction to this seeming incongruity is simple. If you are an Appeals Court judge, Supreme Court decisions are settled law. When you become a Supreme Court Justice, you decide what is settled and what isn't.

Here is my statement released to print media today:

In John G. Roberts, the President has chosen a veteran lawyer, scholar and family man for the Supreme Court of the United States. As the President considered candidates in recent days, we were close to believing that a less qualified candidate might emerge. We are glad to be proved wrong.

Judge Roberts strong bipartisan support in the United States Senate for the D.C. Appeals Court only two years ago should be controlling. This man is solid in every way and will have a long and impressive career on the high court in the mold of his mentor, [Chief Justice] William Rehnquist.

Bush to Name New Justice Tonight

USA Today and others are reporting that President Bush will announce his nominee to fill the seat of Associate Justice Sandra Day O'Connor in an address to the nation at 9:00 p.m. EDT. The White House is asking networks to carry his remarks live.

Speculation is that the President will nominate 57-year-old Edith Brown Clement, a former U.S. District Court Judge for the Eastern District of Louisiana who now sits on the U.S. Court of Appeals for the Fifth Circuit.

Just in case she is chosen, what kind of judge is she?

Though her judicial philosophy is somewhat fuzzy, she has indicated tendencies of strict constructionism, a philosophy that usually means interpreting the Constitution narrowly and with original intent in mind rather as a "living document" to be stretched to meet progressive ideas. When Bush (43) nominated her to the Appeals Court in 2001, she was confirmed 99-0. She is a member of the conservative Federalist Society.

Clement has been targeted for dislike by the left-leaning People for the American Way and the National Abortion Rights Action League (NARAL) finds her record "seriously troubling," placing the burden on her confirmation testimony to dispels doubts about her commitment to "protecting personal freedom," i.e., abortion.

Conservative researchers are concerned, however about a statement she made during her 2001 Senate confirmation hearing. She told the Judiciary Committee 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." That statement sounds more like the stare decisis ("let is stand") philosophy that pervaded the career of O'Connor.

Judge Clement was born in Birmingham and graduated from Alabama. Her law degree is from Tulane. Before taking a seat in the bench (1975) she represented oil companies, insurance companies and the marine services industry.

Other possibilities being talked about in Washington include the other female contenders: Edith Hollan Jones and Priscilla R. Owen (with Clement also 5th Circuit Court of Appeals) newly appointed Janice Rogers Brown of the D.C. Circuit; and Columbia College and USC Law graduate Karen Williams of our own 4th Circuit.

The Word on Gonzales Ain't Good

The Word is Out on Gonzales

In my last Palmetto Public Square, I suggested that there might be a social issues problem with President Bush nominating his friend, Attorney General Alberto Gonzales, to the United States Supreme Court. Now. after reading a paper shared with Palmetto Family Council by Birmingham, Alabama attorney Phillip L. Jauregui, I believe the concerns over Gonzales are even broader.

Jauregui's paper, available on the PFC website here, is an analysis of a Parental Notification ruling [In re Doe19 S.W.3d 346 (Tex. 2000)], of the Texas Supreme Court when Gonzales sat there. It is telling, and not in a good way.

Not only was the effect of the court order the death of an unborn child, it clearly showed Gonzales as an activist joiner eager to overturn two lower court rulings and flout the legislature to allow a 17-year-old girl to have an abortion without notifying her parents.

Gonzales felt so strongly about the decision of the court's majority that he issued a separate, concurring opinion in which he said: "I fully join in the Court’s judgment and opinion.”

The dissenters in the case, (including then Texas Justice Priscilla Owen, who was recently confirmed to a federal judgeship in the deal worked out by the Gang of 14) violently disagreed saying Gonzales and the others "thwarted the Legislature’s purposes in the Parental Notification Act,” violated “parents’ fundamental, constitutional rights to raise their children,” “usurp[ed] the trial court’s authority to find facts,” and “trivialize[ed] the decision to have an abortion.” (I have cited three of their errors. The Jauregui paper cites a total of eighteen lapses for which Gonzales is responsible.)

The situation is clear. Alberto Gonzales, a good friend of a good President and a probably a good Attorney General, isn't the right appointment for the United States Supreme Court. Why? Because his hands are sullied with anti-family jurisprudence and with judicial activism. Long term,

I'm not sure which is worse.

Epilogue
In recent weeks Palmetto Family Council has partnered with Manuel Miranda and the Third Branch Conference, an affiliation of originalist, textualist and pro-family leaders monitoring the apponitment of new Justices to the U.S. Supreme Court. Mr. Miranda published an excellent piece in this morning's Washington Times on the Gonzales situation, raising many additional points to those cited in this edition of Palmetto Public Square.

More Commentary Coming

Watch this space for the latest on South Carolina public policy from a free market and faith perspective.

The Goods on Gonzales

Birmingham Attorney Phillip L. Jauregui has prepared an outstanding legal brief on the record of AG Alberto Gonzales on life issues based on In re Doe, 19 S.W.3d 346 (Tex. 2000) . Here is an exerpt, taken from his conclusion:

"Gonzales thwarted “the Legislature’s purposes in the Parental Notification Act,” Id. at 376,
Gonzales violated “parents’ fundamental, constitutional rights to raise their children, Id.,
Gonzales “usurps the trial court’s authority to find facts,” Id.,
Gonzales “trivializes the decision to have an abortion,” Id.,
Gonzales “acted irresponsibly,” Id. at 383,*
Gonzales “summarily rendered judgment without careful consideration of the record.” Id.,
Gonzales “manufactured reasons to support [his] actions” Id.,
Gonzales “ignor[ed] the evidence that supports the trial court’s judgment.” Id.,
Gonzales “disregarded the law.” Id.,
Gonzales “trampled the process on which the legitimacy of our law depends.” Id.,
Gonzales “usurped the role of the trial court,” Id. at 376,
Gonzales improperly “reviewed the evidence, and [drew his] own conclusions,” Id.,
Gonzales “fors[ook] any semblance of abiding by principles of appellate review.” Id.,
Gonzales’ “actions raise disturbing questions about [his] commitment to the rule of law,” Id. at 377,
Gonzales’ “actions raise disturbing questions about … the process that is fundamental to the public’s trust in the judiciary.” Id.,
Gonzales “manufactured reasons to justify [his] action,” Id. at 379,
Gonzales “substitute[d his] judgment for that of the trial court,” Id. at 383, and
Gonzales “ignore[d] the evidence.” Id. at 383.

Justice Gonzales’ fellow justices say it best; no other commentary is needed."

New Justice Warning

"For me to know and you to find out."

That was Chief Justice William Rehnquist's comment to reporters over the weekend in response to speculation that he would imminently retire. Columnist Robert Novak and internet blogger Matt Drudge had reported that the Chief would synchronize an announcement with the touchdown of the President's plane from the G-8 Summit last Friday afternoon. Our sources in Washington seemed to confirm that expectation.

Well...it didn't happen.

The issue that is before us now is a replacement for Justice Sandra Day O'Connor.

The President is thought to favor an Hispanic-American, and if possible an Hispanic individual he knows. Those assumptions would seem to point to former Texas Supreme Court justice and current Attorney General Alberto Gonzales. In the face of conservative criticism over Gonzales' wobbly record on life issues, Bush, in an interview with USA Today, defended Gonzales as "a friend." In true Texas style, the President also made it clear that he sticks with his friends. We believe such an attitude is fine for a cub scout brawl or a Toby Keith ballad, but a desire to go down with your buddy just for the sake of it isn't an acceptable rationale when choosing a Supreme Court justice.

Should Rehnquist retire, the plot thickens. President Bush could appoint a strict constructionist judge like the our own 4th Circuit's J. Michael Luttig to fill the solid Rehnquist's seat, elevate originalist Scalia or Thomas to the solid Chief position and appoint blow-with-the-wind Gonzales to the squishy O'Connor slot. The net effect of that (see the column by National Review Online's Ramesh Ponnuru) would be a zero sum game.

Make no mistake about it. If zero sum is the result, then all the hard-fought 2000. 2002, and 2004 Presidential and U.S. Senate election victories that make solid, lifetime court appointments possible were fought in vain. We would be foolish and irresponsible to settle for that.