News is that the Supreme Court nominee will be announced tonight at 9 PM, and the buzz is that it’s Edith Brown Clement. She seems like a likely choice: she’s a woman, has avoided drawing as much controversy to herself as a Janice Rogers Brown, and has a far right-wing vision for the court and this country (it always seemed to me that the Gonzales trial balloon was just about getting credit from Latinos for considering him and getting credit from evangelicals for not nominating him).
Brown Clement’s opaque views on abortion will likely continue to dominate news coverage; apparently she refers to Roe as “settled” but not made particularly clear whether she would be interested in unsettling it. The bad news there is, anti-choice leader Hadley Arkes is optimistic:
Just whether or when Roe v. Wade is actually, explicitly overturned may cease to matter quite as much. For in the meantime, the public would have the chance to get used to a continuing train of laws restricting and regulating abortion.
As for the Lochner litmus test, however Brown Clement feels about judicial activism to protect privacy, she seems all-too comfortable with judicial activism to strike down progressive regulations. As Nathan observes, she supported a challenge to the constitutionality of the Endangered Species Act, denied ADA protection to employees discriminated against for having HIV, and argued for making it harder for the poor to get legal representation by cutting legal fees when clients win small awards. As Jeffrey Rosen wrote last year:
How would a stealth candidate like Clement perform on the Supreme Court? Everything about her record suggests she would enthusiastically support the federalism revolution…Taken to its logical limits, the Constitution in Exile would call into question not only environmental protections but workplace regulations like the Occupational Safety and Health Act.