Redstate

what is the right to privacy if the state can take your property at will...

just a clarification.

Not Clements.

C-L-E-M-E-N-T

No S involved there.

This conservative isn't satisfied with the lack of paper trail, and no disrespect for your sources, either. I considered Sununu to be a pretty good source, too.

I don't frankly care who's vouching for her at this point, I want to see it in her own words.

I posted this yesterday at Polipundit:

I have inside information on this one. It is between Jones and Clement, two conservative appellate judges from the 5th Circuit. Clement has been getting highly vetted according to my source. I expressed my concern that Clement might not be as strong a conservative as Jones. My source, who knows both women very well, assured me that Clement is a hard-core conservative but does not have the same paper trail as Jones. He assures me Clement is a "card-carrying member of the Federalist Society" and that she would fit squarely on the Thomas/Scalia side of the court. I trust this source and am not worried at all if Bush picks Clement over Jones. Clement would most likely have an easier time of confirmation. In the end, I think it comes down to whether Bush wants to pick a fight over filibuster with this nominee. If he goes with Jones or Brown he gets a big fight; if he goes with Clement, he gets a rock solid originalist but without expending as much political capital.

I'm not particularly fond of this quote found in WP, could you please clarify why RedState is behind her?

"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.'"

Source:  http://www.washingtonpost.com/wp-dyn/content/article/2005/07/19/AR200507190
0138_pf.html

Obviously, she's legally right, and there's not much she could do as a lower court judge than to say such.  How do we know, though, that she would be a reliable life vote on the Supreme Court if she doesn't have much of a paper trail?  I'm kinda nervous that this might be another Souter.

However, I'm very pleased to see that she's a member of the Federalist Society, and discloses her membership on her bio, so perhaps my worries are nonsense (I mean, I highly doubt that Souter was ever a member of the Federalists):

http://www.usdoj.gov/olp/clementbio.htm

for now. I mean, I think she deserves a chance to be on the bench before she's declared a moderate or liberal or what have you.

The contrast with Souter could not be more sharp. Clement was born in Birmingham, conservative family, etc. Souter was and is an unmarried (possibly gay) New Englander, born in Massachusetts. Clement has much more of a paper trail than Souter did.

So I'm satisfied she's not a liberal. But is she wishy-washy? No one knows, maybe not even her yet.

She's no Souter.  Souter was nominated to the federal courts the same year he was nominated to the Supreme Court.  That's how he managed to have no record at all.

Clement spent a decade in the District Court.  Read that record.  I bet Bush's people have.

I'm glad a couple other folks are here to pick up the battle.  Quit throwing this poor woman under the bus, folks.  She could very well be your dream woman.  Again, please trust W on this one.

I think you've hit the nail on the head regarding precedent.  Lower court judges HAVE to follow precedent set by higher courts.  That's the way it works.  That's the rule of law.

But your concern, similar to those of others, is valid.  Lack of a paper trail is a dangerous thing.  But absence of evidence is not evidence of absence.  Dubya obviously cleared her, which means he likely found out where she personally stands on the big issues.  His track record of appointing judges is stellar.  If Clement's ok with Bush, I'll trust her.

I mean, where did that quote come from and what was the context?

I don't think we fought this hard for this long to have the President run a layup to the basker because his poll numbers are down.

Maybe if they would get on offense and give people something to fight over, they wouldn't be down right now.

This is from her 2001 confirmation hearing:

"Senator Kohl. We will start with Judge Clement.

    In your responses to the committee's questionnaire, your

answers to a question about judicial activism interested us.

You said, ``Certainly, once a judge concludes that the

legislature has acted within its constitutional powers, the

court's role is to uphold the law. However,'' you said, ``in

determining whether or not the legislative or the executive

branch has acted within its constitutional powers, the court

should be activist in its consideration of constitutional

definitions, granting of powers, and guarantees of liberties in

determining the meaning of the text.''

    Judge Clement, could you explain what you meant when you

said a court should be activist?

    Judge Clement. Well, I certainly didn't mean it in a

negative sense. Judicial activism has been criticized as when a

jurist oversteps the bounds of the Constitution or recognized

constitutional statutes and attempts to inflict the will of the

jurist on either the legislative or the executive branch or the

people.

    What I believe is that when legislation is proposed and

passed and becomes statutory that there is a presumption of

constitutionality. And to the extent, the statute should be

upheld and the Constitution should be enforced.

    Senator Kohl. Okay, a follow-up. When the Congress decides

that an issue is a matter of national concern and that it

significantly affects interstate commerce, do you then think

that the courts should defer to Congress' findings?

    Judge Clement. Well, of course, if the law is passed, there

is a presumption, as I said, of constitutionality. So I would

like to have the opportunity, of course, to review the statute,

review the language of the statute, make a factual

determination as to what was attempted to be accomplished by

the passage of the statute, and then evaluate whether it is

within the confines of the Commerce Clause, if it is

permissible.

    Senator Kohl. All right. Judge Clement, would you describe

what you think are the key elements of the Federal right to

privacy, if, in fact, you believe there is such a right?

    Judge Clement. Well, the Constitution guarantees the right

of privacy and the due process protection must be enforced. A

statute should be considered constitutional, but, of course, if

it does not guarantee due process, then it should be studied

very seriously."

http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=107_senate_hearin
gs&docid=f:80915.wais

The only reason that I like this is that by NOT having a huge fight here (assuming there isn't one), I think it opens up the coming picks (be that Rehnquist, Stevens, Ginsburg or some combination) for an in your face conservative (Roberts, Luttig, Garza).

So if we believe the backroom talk that Clement is more conservative than O'Connor AND we pick up a Garza/Roberts/Luttig then we're good.

On the other hand, if Bush thinks that Clement gets him off the hook and replaces Rehnquist with GONZALES then I will be pretty upset.

Simple answer: We'll never have any way of knowing how ANY potential nominee would vote on a particular case that may come up in the future.

No paper trail of opinions can make it certain, because no court has the latitude the Supreme Court has.

No body of essays will make it certain, unless the judge is an activist who's pre-judging cases in favor of his political views.

We just have to look at who's out there, read their opinions to try to get a feel for how they think, and do the best we can.

P.S. President Bush never promised a "reliable life vote," nor is there a Red State community consensus in favor of her.  Yes, a few of us do want to end abortion by any means necessary, but others of us (including me) want to leave that to the legislatures, and instead favor judges who will uphold the law and the Constitution regardless of outcome.

She said:

"the right to privacy guaranteed by the Constitution"

Problems:

1. There is no right to privacy in the text of the Constitution, it was made up by the Court to justify  activist rulings.
   
2. That indicates she is not a strict constructionist, texualist.

She seems like an O'Connor lite which is unnecessary given our dominance of the Senate.

not to go too far afield, but Souter had been Attorney General of New Hampshire and a New Hampshire Supreme Court Justice  . . . and yet there was no record of any speeches he had ever given on ANY SUBJECT. . . .

Wasn't that kind of a tip off that he was, at a minimum, a bit odd?  

 Responses of Edith Brown Clement to questions submitted by Senator

                             Patrick Leahy

    Question 1: There is a lot of work being done by this committee

right now on the question of balancing civil liberties and national

security interests. What is the constitutional test of whether the

government can deprive an individual of his or her constitutional

rights on a plea of military necessity?

    Answer: As with any other statute that affects constitutional

rights, military orders must afford adequate due process protections,

but such orders must be judged in the context in which they arise. It

is important to balance individual civil liberties against the

government's interest in national security. The government, of course,

cannot violate constitutional rights, but the specific answer to your

question depends on the particular legal and factual context.

    Question 2: Are all measures deemed expedient from a national

security viewpoint necessarily constitutional?

    Answer: No. Although it is settled law that courts should defer to

Congress and the executive branch in matters of national security, such

deference does not extend to automatic validation of governmental

action.

    Question 3: Is the case of Korematsu v. U.S., 323 U.S. 214 (1944),

still good law? Do you believe, as Justice Rehnquist has written, that

on matters like Korematsu, ``[t]here is no reason to think. . .that

future Justices of the Supreme Court will decide questions differently

from their predecessors''?

    Answer: While the Supreme Court has not specifically overruled

Korematsu and, to that extent, it remains good law, it has been

interpreted in subsequent decisions to which courts must adhere. How

such decisions apply to a future case will depend on the specific facts

and circumstances presented in that controversy.

    Question 4: In the past few years, the Supreme Court has struck

down a number of federal statutes, most notably several designed to

protect the civil rights and prerogatives of our more vulnerable

citizens, as beyond Congress' power under Section 5 of the Fourteenth

Amendment.' The Supreme Court has also struck down a statute as being

outside the authority granted to Congress by the Commerce Clause. These

cases have been described as creating new power for state governments,

as federal authority is being diminished. At the same time, the Court

has issued several decisions, most notably in the environmental arena,

granting states significant new authority over the use of land and

water, despite long-standing federal regulatory protection of the

environment. Taken individually, these cases have raised concerns about

the limitations imposed on Congressional authority; taken collectively,

they appear to reflect a ``new federalism'' crafted by the Supreme

Court that threatens to alter fundamentally the structure of our

government. What is your view of these developments?

    Answer: As a trial judge and, if confirmed as an appellate judge, I

am bound to follow the precedent established by the Supreme Court.

    Question 5: Can Congress ever subject states to private suits for

damages for discrimination based on classification to which the Supreme

Court does not give heightened or strict scrutiny?

    Answer: Under existing Supreme Court precedent, Congress has the

authority to subject nonconsenting states to suit pursuant to a valid

exercise of its power under Section 5 of the Fourteenth Amendment.

Private individuals may recover damages from a state, provided there is

a pattern of discrimination by a state in violation of the Fourteenth

Amendment.

    Question 6: If Congress provides money to a state on the condition

that it use the money in certain ways, can Congress constitutionally

require a state that accepts such funding to waive its sovereign

immunity to private actions for money damages if the state is misusing

such funds?

    In exercising its power under the spending clause, Congress may

place restrictions or obligations on states that choose to accept

federal funding, including the waiver of immunity to private actions,

if the restrictions comply with the constitutional tests established by

Supreme Court precedent.

    Question 7:  Are there any federal statutes or sections thereof

concerning which the Supreme Court has not yet ruled that violate the

state sovereign immunity doctrine under the U.S. Constitution?

    Answer: As I said in my confirmation hearing, statutes passed by

Congress are presumed to be constitutional. It is difficult to address,

in the absence of specific facts, whether or not a statute violates the

doctrine of sovereign immunity. As a jurist, I will faithfully follow

Supreme Court precedent.

    Question 8: Are there any federal statutes or sections thereof that

go beyond Congress' enumerated powers under the Constitution?

    Answer: Similar to challenges based on sovereign immunity grounds,

challenges based on Congress' constitutional power must be examined on

a fact-specific basis. While statutes are presumed to be

constitutional, I will be bound by Supreme Court precedent in

evaluating whether federal statutes violate the Constitution.

    Question 10A:  Describe the Federalist Society's Advisory Council

and your role as a member of it.

    Answer: The Advisory Council for the Louisiana Lawyers Chapter of

the Federalist Society provides support from the legal community for

selection of appropriate Programs, including to Pits for debate and

speakers to be presented at Louisiana law schools.

    Question 10B: Describe the Federalist Society activities (including

activities of the Advisory Council) in which you have participated as a

federal judge.

    Answer: The Federalist Society presents panel discussions of issues

focused on constitutional law. I have participated as a panelist with

government officials, law school professors, practitioners and members

of the state and federal judiciary. I have also participated in the

activities of the advisory council discussed above.

    Question 1OC: Describe the ways in which your membership in the

Federalist Society and/or its Advisory Council has influenced your

decisions as a judge.

    Answer: My membership in the Federalist Society and/or its Advisory

Council has not had any influence on my decision malting as a judge.

    Question 10D: Are there any cases or categories of cases in which

your membership in the Federalist Society would cause you to recuse

yourself?

    Answer: If the Federalist Society were party to litigation in a

case before me, recusal may be required under the Canons of Ethics or

statutes defining reasons for recusal.

    Question 10E: What does it mean to be a member of the Federalist

Society as a judge?

    Answer: Membership in the Federalist Society has no particular or

general meaning to being a judge.

    Question 1OF: Do you share a judicial philosophy with the

Federalist Society?

    Answer: I am unaware of any judicial philosophy articulated by the

Federalist Society.

    Question 1OG: With what (if any) Federalist Society positions do

you disagree?

    Answer: I am unaware of any positions announced by the Federalist

Society.

    Question 11A: Describe the Federalist Society activities in which

you participated as an attorney.

    Answer: I attended and participated in panel discussions and

debates at law schools.

    Question 11B: Did you consider resigning from the Federalist

Society when you became a judge? If not, why not?

    Answer: Because the Federalist Society does not take positions on

political issues, I did not consider resigning. However, were the

Federalist Society to alter the manner in which it functions, I would

reassess my membership.

    Question 12: Could you please clarify your answer (to Senator

Kohl), end in particular, the relationship between the federal right to

privacy and the Due Process clause?

    Answer: The Supreme Court has recognized the right of privacy in a

number of different constitutional provisions, and the due process

protection attendant to that right varies according to the particular

constitutional provision and factual context. In light of the varied

contexts in which privacy rights arise, the boundaries of a right and

the due process protections afforded to that right should be determined

on the facts of a specific case.

                                <F-dash>

Responses of Edith Brown Clement to an additional question submitted by

                         Senator Patrick Leahy

    Question 1: Please state whether you have ever been arrested for,

charged with or convicted of a crime, within twenty years of your

nomination, other than a minor traffic violation, that is reflected in

a record available to the public. If your answer is ``yes,'' please

provide the relevant dates of arrest, charge, and disposition and then

describe the particulars of the offense.

    Answer: I am informed that background investigation reports on

nominees prepared by the Federal Bureau of Investigation (FBI)

routinely address the type of information called for by this question.

Without waiving the confidentiality of the FBI background investigation

report prepared on me, I respectfully direct your attention to that

report for a response to this question.

                                <F-dash>

  Responses of Edith Brown Clement to questions submitted by Senator

                             Edward Kennedy

    Question 1: Please explain the basis of your decision in Cholak,

including why your conclusion on the question of the constitutionality

of indefinite detention differed from the ultimate conclusion of the

U.S. Supreme Court.

    Answer: Kestutis Zadvydas and Majid Cholak faced materially

different factual scenarios. Although Zadvydas represented that he was

a German citizen, the German government informed the INS that he was

not deportable to that country. As a result, Zadvydas faced a strong

likelihood of permanent confinement because there was no country to

which he could be released. Unlike Zadvydas, Cholak was an Iraqi

citizen whose deportation was actively pursued by the INS. Accordingly,

Cholak's case did not present the factual scenario of an alien who

faced probable permanent confinement.

    In addition, the Cholak decision was ultimately based on

procedural, and not substantive, due process grounds. Specifically, the

INS violated Cholak's procedural due process rights by failing to

adequately consider the factors enumerated in 8 C.F.R. Sec. 242.2(h) in

its six month periodic evaluation of Cholak's status. Therefore,

Cholak's case was remanded to the INS for reconsideration of his

request for release, with the recommendation that it consider his

probation officer's recommendation that Cholak was not a danger to the

community or a flight risk.

    Question 2A: What is your approach to constitutional interpretation

where the text of the constitution is ambiguous?

    Answer: I would, of course, be bound by Supreme Court precedent and

would evaluate the decisions of other courts. The history, text, and

purpose of the provisions should be studied as well as considerations

of how the text should be applied to the specific facts and

circumstances.

    Question 2B: Do you believe the constitution contemplates a ``right

to privacy''?

    Answer: Yes, as I stated in my responses to the follow-up questions

asked by Senator Kohl, I do believe that the Constitution contemplates

a right to privacy. The Supreme Court has repeatedly held that the

Constitution encompasses a right to privacy.

    Question 2C: Do you believe the constitutional right to privacy

encompasses a woman's right to have an abortion?

    Answer: The Supreme Court has clearly held that the right to

privacy guaranteed by the Constitution includes the right to have an

abortion. The cases handed down by the Supreme Court on the right to

abortion have reaffirmed and redefined this right, and the law is

settled in that regard. If confirmed, I will faithfully apply Supreme

Court precedent.

                                <F-dash>

   Responses of Judge Edith Brown Clement to questions submitted by

                           Senator Herb Kohl

    Question 1: Do you believe there is a guaranteed right to privacy

in the Constitution?

    Answer: The Supreme Court has made clear that the Constitution

guarantees a right to privacy.

    Question 2: What are the elements of that right?

    Answer: The elements of the right to privacy depend on the aspect

of that right at issue in a particular case. Different factual

situations call for different definitions of privacy. The Supreme Court

has made it clear that the right to privacy exists in multiple facets

of a person's life. For example, the right to privacy found in the

First Amendment focuses on a person's right to make certain personal

decisions without government interference. The right found in the

Fourth Amendment gives heightened protection to what a person does in

the sanctity of the home.

    Question 3: Which Supreme Court Cases do you consider the most

important in defining the right to privacy? I believe that one of the

most important decisions with respect to the right of privacy was

actually Justice Brandeis' dissent in Olmstead v. United States, 277

U.S. 438 (1928), in. which he analyzed the concept of the right to

privacy. He wrote:

    Answer: The makers of our constitution. . .recognized the

significance of man's spiritual nature, of his feelings and of his

intellect. They knew that only a part of the pain, pleasure and

satisfactions of life are to be found is material things. They sought

to protect Americans in their beliefs, their thoughts, their emotions

and their sensations. They conferred, as against the government, the

right to be let alone the most comprehensive of rights and the right

most valued by civilized men.

    Courts have expanded on Brandeis' language and held that zones of

privacy exist within several constitutional guarantees, and that an

individual's right to privacy needs to be balanced with the

government's interest in enforcing the laws.

    Question 4: Do limits exist on the right to privacy? If so, what

are they?

    Answer:Limits on the right to privacy will vary based on the aspect

of the right at issue in a given case, just as the elements of that

right will vary in the same way. The Supreme Court has set forth

certain standards regarding the limits of this right that guide courts

in making determinations in specific cases and context involving the

right to privacy. For example, the Court has held that a person must

have a legitimate expectation of privacy in that which is sought to be

protected.

    Question 5: Please explain the relationship between the right to

privacy and due process protections.

    Answer: The Supreme Court has carefully delineated the due process

protections accorded to a particular privacy right within the

background of the right itself. In light of the varied contexts in

which privacy rights arise, the boundaries of a right and the due

process protections afforded to that right should be determined on the

facts of a specific case.

    Question 6: When Congress defines by statute, Congressional

findings, and legislative history, some aspect of the right to privacy,

what amount of deference to these findings of fact do the federal

courts need to afford to Congress?

    Answer:As I stated at my confirmation bearing, statutes passed by

Congress are presumed to be constitutional. Courts should uphold

statutes based on rational legislative judgments because courts must

defer to Congress' intent when it has exercised discretion within its

constitutional powers. Although Congress has never been required to

support its statutes with formal factual findings, legislative findings

of fact have great value in creating a realistic background for a

particular statute and in pointing out the specific applications

Congress intended.

                                <F-dash>

   Responses of Judge Edith Brown Clement to questions submitted by

                        Senator Russell Feingold

    Question 1: Sen. Kohl asked you questions at your confirmation

hearing concerning the private judicial education seminars you have

attended in recent years, including seminars hosted by the Foundation

for Research in Economics and the Environment (FREE), George Mason's

Law & Economics Center (LEC) and the Liberty Fund.

    You testified as follows:

    ``My experience has shown that the panels end the speakers are from

a widely'' diverse group, that there is a representation from private

industry as well as from government and public officials, as well as

from the law schools, including the deans of the law schools and the

faculty members.

    ``So to that extent, my participation in programs, either as a

speaks or as a participant, has reflected that there is a wide variety

of opinions expressed. I think it is a very broad-based presentation of

issues dealing with constitutional law, as well as antitrust and

economics, as well as environmental issues. So to that extent, I don't

see a problem with the educational opportunities ,afforded to the

judiciary.''

    A recent article published in the Harvard Environmental Law Review

examines a September 1996 FREE seminar you attended is considerable

detail and concludes that the seminar offered ``no views contrary to

the seminar's principle themes'' (25 Hare. Env. L. Rev. 405, 447

(2001)).

     a. Do you wish to revise or elaborate on your answer to San.

Kohl's question?

     b. Attached is a list of privately trips funded tripe that you

reported an you financial disclosure forms since 1992. To the extend

that you remember or can locate is your files information concerning

these trips, please provide the following information on the private

educational seminars you attended:

        i. The subject matters covered;

        ii. The identities of the lecturers or presenters of

        information;

        iii. Copies of the seminar schedules and other written material

        you received.

     c. Do you contend that each of the educational seminars you

attended were diverse and broad based?

    Answer 1a: After having evaluated the article, ``Nothing for Free:

How Private Judicial Seminars are Undermining Environmental Protections

and Breaking the Public's Trust'' recently published in the Harvard

Environmental Law Review, I remain of the opinion that the seminars

presented by FREE, LEC and the Liberty Fund focused on problems and

solutions from varied perspectives. The opinions of private industry,

as well as public governmental regulatory bodies were presented. The

views of academics were supportive of industry in some instances, and

of governmental officials in others.

    b. Attached are the seminar schedules which identify the following:

        i. Subject matter

        ii. Lecturer

        iii. Materials for assigned reading

    c. The educational seminars were focused on particular

environmental, economic or constitutional issues end problems. I felt

that the presentations of the competing solutions represented a variety

of interesting and important viewpoints.

    Question 2: I am concerned about the appearance that corporate

litigants fund groups such as FREE in order to get an audience before

judicial decision make. I note, for example, that the September 1996

FREE seminar you attended, Texaco's retired CEO, Alfred DeCrane gave a

lecture entitled ``The Environment--A CEO's perspective'' and Michael

Harboldt of Temple-Inland lectured on ``Temple-Inland's Environmental

Program.'' Texaco and Temple-Inland are both Fenders of FREE.

    Judicial Conference Committee on Codes of Conduct Advisory Opinion

67 considers the issue of a judge's participation in a privately funded

education seminar. It states in part:

    ``It would be improper to participate in such a seminar if the

sponsor, or source of funding, is involved litigation, or likely to be

so involved, and the topics covered in the seminar are likely to be in

some manner related to the subject matter of such litigation. If there

is a reasonable question concerning the propriety of participation, the

judge should take such measures as may be necessary to satisfy himself

or herself that there is no impropriety. To the extent that this

involves obtaining further information from the sponsors of the

seminar, the judge should make clear an intent to make the information

public if any questions should arise concerning the propriety of the

judge's attendance.''

     a. Did you inquire into FREE's and other the seminar hosts'

sources of funding before attending these privately funded seminars? If

so, how did this information affect your decision of whether to attend

the seminars? If not, how did you comply with your obligations under

Advisory Opinion 67?

     b. Having attended the 1996 FREE seminar, would you participate in

an environmental case involving Texaco or Temple-Inland? How would you

analyze a recusal motion based on your attendance at one of these

seminars?

     c. Does it concern you that corporations appear to befunding

judicial seminars in part to secure access to the federal judiciary and

advance their own view of the law?

     d. Do you understand the perception problem created by judges

attending these types of seminars? What have you done to address that

perception problem in your own court, and what would you do to address

the problem if you are confirmed to the U.S. Court of Appeals?

     e. If you are confirmed to the U.S. Court of Appeals, would you

continue to attend judicial seminars sponsored by organizations such as

FREE, LEC, and the Liberty Fund?

    Answer 2a: The letter of invitation stated that the conferences

were sponsored by FREE and the Lewis and Clark Law School, supported by

the M.J. Murdock Charitable Trust and John M. Olin Foundation. The

Liberty Fund letter of invitation identified its sponsors as a

foundation to encourage study of the ideal of a society of free and

responsible industries and the Center for Judicial Studies, a non-

profit educational organization for advanced study of the Constitution.

Corporate sponsors were never identified and to this day I do not know

who they were. Several judges had attended prior seminars and

recommended them highly. The issue of sponsorship never seemed relevant

to the discussions, and no judicial opinion I have rendered was the

result of information provided at an educational seminar.

     b. The disclosure requirement imposes on the judge the obligation

to provide public information regarding reimbursement of expenses.

Perhaps a more appropriate disclosure would include listing the-

sponsors. More generally, a motion for recusal would be considered by

evaluating any actual bias as well as any perception of bias, which

must be avoided.

     c.It is always an appropriate concern if an interest group has

unfairly sought to influence judicial decision making. At the same

time, is i5 important that different perspectives be aired and heard. I

do not feel that I was misinformed yr persuaded to evaluate the law

inappropriately in that varied views of issues were consistently

presented. The identity of corporate sponsorship would assist a judge

in evaluating whether attendance was appropriate.

     d. Depending upon the circumstances, a judge's participation in

certain events could create the perception of bias which must be

avoided. A judge should recuse from any case where there is a

perception of bias. As I stated in response to sub paragraph a, I have

not ever rendered an opinion which resulted from views presented at any

seminar attended nor has any patty before me suggested that they

perceived any bias as a result of my participation is the seminars.

     e. I would evaluate the faculty and topics to determine if the

seminars would grove helpful. I would also be attuned to the need to

identify any appearance of impropriety from my attendance.

In that short answer, the way she talks about due process, it sounds to me like she's sidestepping the abortion issue by taking "privacy" to refer to the right against warrantless searches and seizures.

After all, I don't recall Doe and Roe saying that the right to an abortion can be taken away by any process, but that's exactly what she's talking about: how privacy can be removed by due process of law.

Anyone who accepts the current creation of the right to privacy is likely not going to be a reliable vote.

I hate expansive Commerce Clause readings.  And deferring to the legislature is only the right path when the Constitution is silent.  In the Commerce area it is clearly not silent and the Clause was meant as a limit on power.  I'm not comfortable with a judge who is willing to let Congress decide what is and is not interstate commerce.

She said the "Supreme Court held...," and she's correct.  DaveGOP is right on SCOTUS precedent, whatever they say must be applied by the lower courts, even if it's totally bogus, or as Scalia likes to say, "Doesn't pass the laugh test."

Everyone I talk to who knows Clement PERSONALLY says she is conservative, that she is a strict constructionist/originalist somewhere on the Thomas/Scalia continuum.  People I have talked to disagree about whether she is more like Thomas or Scalia, a distinction that may be important in some circles but in the big picture is really a nonissue.  The point is she is NOT a Souter or even an O'Connor (I had worried before about whether "Clement" was Cajun for "O'Connor").  After talking to people who are in the know, I can tell you that the White House was vetting her thoroughly, not only for personal issues that might affect confirmation but, importantly, to find out how solidly conservative she is.  That the White House was making a concerted effort to ensure the conservative bona fides of the candidates they were examining is a positive sign, don't ya think?

Well, there is at least SOME right to privacy in the Fourth Amendment's protection against unreasonable searches  . . . so it would not be accurate to say that there is no such right.  Only that the right is what is stated in the Fourth Amendment and not in some spiritual divination therefrom . . (see Griswold).  

What is the right to property if you're not alive to own it?

I think Bush will pick Roberts for CJ.

Roberts has the potential to be a consensus builder.  Luttig would be too brazen.  He'll be the first pick for Scalia's seat when he retires.

Just curious though, when you say, "in your face" conservative, are you describing views or style?  That is, what difference does it make whether someone makes everyone feel all fuzzy inside during the confirmation hearings as long as he votes the right way once on the bench?

Sorry to nitpick, but I get the impression many conservatives are disappointed solely because they wanted to pick a fight with Democrats.  And I've never seen the point in picking a fight when the same results can be attained through easier means.  

I guess you don't like Scalia, since this term he found that the commerce clause allowed a federal law to trump a state law that allowed the growing of an herbal plant exclusively for medicinal purposes and not for any economic activity outside the state's borders.

If McCarthy couldn't get away for exposing Joseph Welch as a member of the National Lawyers Guild, historically a communist front, why should Leahy get away with asking Clement about her membership in the Federalist Society?

Clement should have replied, "Have you no sense of decency, sir?  At long last, have you left no sense of decency?"

It was one of the junior attornies involved that was an NLG member, not Welch, though Welch was accused of Communist activities.  That quote from Welch was in response to McCarthy bringing up the NLG membership of the junior attorney.  However, the circumstances still apply here.

She seems to recite very "back of the book" type answers which leaves the Senators no place to go. The Federalist Society answers were particularly smart and made the Senator look foolish for prying.

I think she is going to do very well.

She was talking about right to privacy specifically in regards to abortion.

I suppose her Fed Soc membership and defense thereof is a good sign, as well as her attending seminars by FREE and Liberty Fund and the like.

Perhaps she has consciously striven not to have a paper trail, thus opening up this possibility.

But we are still asked to have a lot of faith...

This just up from Jack Balkin, a Yale Law School prof who supports the right to infantacide:

"The A.P. reports that speculation is converging around Edith Clement of the Fifth Circuit. If so, this is completely in line with the reverse litmus test that I have predicted the Bush Administration will apply to its Supreme Court candidates.

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."

This, of course, tells you nothing about how Judge Clement would decide the issues in the Ayotte case that the Court will decide next Term, what her interpretation of the undue burden test is, or indeed how much she would be willing to whittle away the abortion right in a series of cases over the next decade. Moreover, because she has a solid conservative reputation, she will not upset the Republican base as much as Gonzales did. Finally, she is likely to take relatively conservative stands on a wide range of issues outside of the abortion context.

All in all, a shrewd political choice for the President if he goes in this direction."

I thought the question looked more open-ended.  

I feel too much like this is a status quo pick, and the fact that Specter is happy and the dems are happy makes me think they either know something we don't or they think they know something.

I think she is expected to be like O'Conner-here's hoping that expectation is wrong.

I am not too reassured at this point, hopefully as the research begins more info will be found on her, but I just have lots of reservations and am afraid we are being sold a pig in a poke and not the real deal.

I do think in her favor is that she is going to be very difficult to make an "extremist" case against, and I think the dems will shoot themselves in the foot, if they try to turn her into one.

did disagree with Scalia there.  That's why many on RS think Thomas is more appealing than Scalia.

Now whether fetus's are "people" or not is up for debate, but I've never heard the argument that they could own property before!

I don't like the decision.  I understand where it came from, but I don't like it.  I think it continues the line of cases that find root in "aggregation" doctrine - that a totally local activity (like say, growing your own corn for your own consumption) is regulatable because you not buying corn (since you grow your own) influences demand and changes prices, when aggregated across the many individuals who are doing that (this is how they justified New Deal crop restrictions).

I think that the state should be permitted to allow totally local use of marijuana for medicinal purposes.  But as long as aggregation is "the law" that can't be - the local growing and use effects the interstate traffic in a drug, which Congress can regulate.

The medicinal marijuana thing is also about criminal punishment - I don't think there should be federal criminal law on this point unless there is an action directly implicating commerce - for example, being caught transporting drugs over state (or national) borders, selling with the intent to traffic, etc. - simple possession or use shouldn't even be federal issues, they should remain state issues.

I am not a fan of the feds - I believe that the Court has allowed Congress to run rampant on the Constitution in economic areas by completely failing to enforce any of the provisions that were designed to limit congressional power.  And I am as anxious to see those limits restored as I am to see the social issues restored to legislative control.

Bush actually said there would be no 'litmus test'.  He only suggested that he would appoint a constructionist.  That means the Roe issue is completely an unknown.  

Just because so many anti-Roe people have convinced themselves that a constructionist simply must overturn Roe doesn't mean that is the actual decision that would be made.  Every judge will read the original intent of the constitution in their own way.  Even Scalia and Thomas disagree 10 percent of the time (likewise with Rehnquist).  

supposed to be in the model of Scalia and Thomas.

Here's how.....

Man gets Woman pregnant.  They are not married.  Man dies without a will while Woman is 6 months pregnant.

Typically in the unmarried person dying intestate, the estate passes to the decedent's children.  One might say Man has no children.  But most states would hold the estate in probate for the unborn child.  Only if the child is stillborn or miscarried would the estate then revert elsewhere (probably to Man's parents).  But until then the "fetus" "owns" the property.

They can't make an "extremist" case against her because she has never put herself on the line for any conservative causes.  

Wait until Ginsberg gets her ear.  This is looking more and more disastrous by the minute for me.  

If the President can't appoint a true conservative like Luttig with 55 Republican Senators in a non-election year, when can he?  This may very well have been a panic choice in response to the bad Rove press.  And that, my friends, is tragic.

The unanswered question appears to be her stance on social issues.

This, I thought was interesting:

"The history, text, and

purpose of the provisions should be studied as well as considerations

of how the text should be applied to the specific facts and

circumstances."

Not sure where Scalia and Thomas would come down on the "purpose" of a constitutional provision.

.....from Justice Thomas's continued dissents.  The Constitution does not provide for a right to privacy in the sense used in Griswold and Roe and therefore any originalist would have to overturn the decisions because the text does not provide the right that those decisions protect.

Therefore (and I don't say I agree) textualist=pro-life for some.

Yup, that's a good point...

Sun-Tzu-like even.  On the democratic side of things, they probably want to avoid a filibuster right now because they want to keep Rove in the headlines, so maybe after everyone getting amped up for 5 years we'll have an unspectacular senate confirmation?

he promised to appoint justices in the vein of Thomas and Scalia-he even said so in at least one of the debates.

I agree with you that originalists do not agree entirely on the issues and that there is some variation, and I think anyone who would expect a court of 9 originalists to never have a split decision would be insane.

There is room for different interpretation from originalists, although I have a hard time seeing how an originalist can find the right to murder your unborn child in the womb somewhere in the constitution.  I think most originalists would argue that abortion is something that should be left to the states to decide and not a matter for the federal courts or legislature for that matter (as a matter of fact that is one reason I am not so sure a federal partial birth abortion ban would pass muster for an originalist-it will be interesting to see how the court handles the case when it gets there).

I think we're reading the term "life vote" differently.  I take it to mean "on the side of anti-abortion laws" not "against Roe."

For example, if I were on the Supreme Court, I'd uphold state laws banning abortion, because the definition of murder is a state matter, but I'd overturn the federal partial birth abortion ban for the same reason.

I'd not be reliably on the "life" side.  I'd just follow the Constitution.

That said, I consider being  anti-Roe to be a useful litmus test of judicial activism.  If you're not willing to overturn that, you're not willing to turn the tide of the "living Constitution"ists,  so you're not useful to me on the Supreme Court.

pro "this matter belongs with the states to decide and there isn't a right to abortion in the federal constitution"

It may be "unspectacular" in the Senate.  But the interest groups are going to go ape regardless of who the nominee is.  They have money to burn and moonbats to make happy.  If they don't attack this time then their donors won't be giving more money for the next one.  They will act the same way some on the right would act if the President doesn't come through with an originalist.

It also could be

Wait until Clement gets Ginsburgs ear.  

Maybe this isn't a good indicator, but I am aware that Judge Clement wrote a strong concurrence as part of a Fifth Circuit decision rejecting a challenge to a Louisiana statute authorizing a "Choose Life" license plate. Henderson v. Stalder, 287 F.3d 374, 384 (5th Cir. 2002). She complained of how the First Amendment was being used to suppress the speech of those sympathetic to the "Choose Life" viewpoint. Then, on appeal after remand, she rejected a challenge to all of Louisiana's specialty license plates on the basis that the federal suit was barred by the Tax Injunction Act. Henderson v. Stalder, 407 F.3d 351 (5th Cir. 2005).

More importantly, Judge Clement's concurring opinion reflects a stance that some other judges regarded as more conservative have not taken. See Planned Parenthood of SC v. Rose, 361 F.3d 786, 800 (2004) (affirming decision of the district court invalidating South Carolina statute authorizing "Choose Life" license plate) (Luttig, J., concurring in the judgment). Although this is a somewhat obscure issue, I think it reflects very favorably on her conservative credentials.

Given Clement's lack of any signs of intellectual life, I think that my original prediction is right.

The people who don't know anything about her are the people who haven't checked her long track record in the federal courts.

I get the impression some people almost want Bush to appoint another Souter so they can scream "not one dime, bolt the Republican party, and create a new abolitionist party free of libertarians.

So your definition of "textualist" is someone who pretends the ninth amendment doesn't exist?

Man it must suck to be a pessimist like you.  Always expect the worst.  

And I'd probably rule the same way on those issues.

But I think most pro-lifers just want someone who will send the issue back to the states.  Anyone who's been paying attention knows there's not going to be a constitutional right to life from conception declared anytime soon.

Check your yahoo email.

I am actually become less comfortable with the pick especially after reading the comments over on DailyKos.

Looking at the "purpose" of a particular constitutional provisions seems to me an originalist idea--that is, it goes beyond mere textualism to the intent and understanding of the people who drafted it.  This seems verr Thomasian, if you will.  Textulaism can be problematic when a word or phrase comes to mean something very different now than when it was first used ("cruel and unusual," for example).  Looking at the purpose of the provision (in this case, to prevent, say, drawing and quartering) may be more helpful than just looking at the text ("given that all the European countries have outlawed the death penalty, it sure seems unusual in the year 2005.")  

I'll admit that I'm a proud pessimist.  Pessimism is at the heart of my conservative belief that government cannot solve the intractable flaws of human nature.

Based on the fact that we live in a country where one million babies are killed a year and old-fashioned right-and-wrong is considered out-moded, how can one not be a pessimist?

geraldy, you don't know what you are talking about.  When I first heard Clement's name floated, I though she might be another O'Connor.  Talking to people who have clerked for her and worked with her and know her personally, I can tell you straight up she is much more like Thomas and Scalia.  Why would Ginsberg have any more sway over her than over Luttig?  Please.

Go read her opinions then, from her 10+ years on the federal bench, so you'll have some hard facts, instead of reading at Daily Kos, where you'll just get fantasy and foul language.

What does it mean?  Do you know?  Does anybody?  Did even the Founders know?  And if there is no indication of what the Ninth Amendment means or was intended to protect, who should decide what it protects?  If we say the Supreme Court then we are simply saying that we are willing to have 9 judges as a kind of super-legislature, as it would allow almost any right to be "found" in the Ninth Amendment, and only they would be able to look for them.  The point of originalist/textualist philosophy is to move away from justices exercising preference as to what should be protected and stick with what the Constitution protects (beyond which the Legislatures - state and federal - would be permitted to act based on the political debate in those bodies).

Besides which, the Ninth Amendment has never been incorporated as acting as a limit on state action - it restrains only federal power.

but the fact of the matter is that female judges who don't have a strong record of intellectual achievement are much more likely to be influenced by nefarious feminist causes.  Female judges automatically get honored by feminist legal associations.  They get flattered by the Nina Tottenbergs of the press.  All of this would stop if they vote against abortion.  I truly think that this is what happened to O'Connor.

Luttig has a highly distinguished legal and scholarly record and he is a man.  There are no significantly fewer risks there.

I can't imagine a more unpleasant group of people than the people who post over there.  Just a vile bunch.

play her.

She is hard to pinpoint on abortion-so I think the pro life people are going to be complaining more, but I am sure NARAL is going to find something to hate.

My guess is that the business oriented groups are going to like her.

OK. Am I reading correctly between the lines, when I guess that RS thinks she is the Anti-Souter?

IE: Souter - a liberal in conservative clothing, whereas Clement - a conservative in liberal clothing.

Libs are exalting and conservatives moping about her "right to privacy" comment. But having read her full answer on that, I don't think she means the kind of "right" found in Roe; more due process.

Her only true worrying comment is the 'settled law' one. If I could just be reassured that she means settled - until the SC overrules it, I'd be happier.

I gathered from comments elsewhere, and apologize for not being able to recall the specifics, that Clement overturned previous precedent before on the 5th Circuit. If so, perhaps she did not mean by 'settled' that she goes for stare decisis.

Where's the announcement?  What's the skinny on a when, now that we seem to have a who?

The point is that over at Daily Kos, they're fairly happy about the pick.

Keep in mind the context of the quote.  She had been nominated for the Court of Appeals, so in that capacity she absolutely would have to consider the Supreme Court's whims to be settled law.

I see no reason to assume the worst of the President's pick here.  This is the same guy who picked Condi Rice, John Bolton, John Ashcroft, and Janice Rogers Brown.

http://www.washingtonpost.com/wp-dyn/content/article/2005/07/19/AR200507190
0725.html

It specifically says not to do what certain conservatives like to do: claim that because the Constitution doesn't list right X, we can't claim right X.  That's all and everything it means.

So my suggestion is to find arguments against Roe that don't conflict with Amendment 9.

Slate had this article saying where different members of Bush's short list stood on Roe and Clement was listed as a "Question mark" versus all the others:

http://slate.msn.com/id/2122003/

Optimism is at the heart of my conservative beliefs.

MLK would not have gotten anywhere if his a cry had been

We MIGHT overcome!

Or

I WANT  to have a dream!

History is made ny the OPTIMIST!

aren't reading her stuff.

I have to admit if the liberals are really liking her, then it scares me a good deal.

People vouched for Souter's conservative bonifides and look what we got.

upon occasion who comes from the other side of the moat, it's probably just speculative wishful thinking from Kossacks.  Not that they are wrong or that Clement's more conservative supporters are wrong or right, just that there are a lot of unknowns so everyone is speculating according to their preferences and optimisitic/pessimistic world view.

Frankly, while conservative, it's pretty hard to see anything in her record that Reid, Biden and similar Democrats could object to so it's pretty hard to deny the will of the President on this pick, if Clement is the pick.  My bet would be that she will be confirmed by a comfortable margin if chosen.

are nothing more than Sheeple!  They do want their leaders tell them to do.

I happen to trust our President on this one. He has appointed over 200 lower court judges, and I have heard that ALL of them are pro-life. We will have John Roberts (or Michael Luttig) for Rehnquist, Emilio Garza for Stevens, and maybe even Janice Rogers Brown for Ginsburg. So we are getting just the first part of a three or four-part package. We can save our heavy artillery for some of the NEXT few retirements which WILL happen while Bush is president, whether in 2006 or 2007. Every one should take a deep breath and remember that this is a marathon, not a 100-meter dash. The long-term direction looks promising.

The progressive/liberal Tom Paine organization is giving Clement a qualified endorsement:

http://www.tompaine.com/articles/20050718/a_justicepicking_formula.php

Just to be clear, I hope I'm wrong on Clement and if that is the pick then I think we support her.

We will know soon enough if she is conservative or not since there is at least one abortion case (it's either a partial birth abortion or age of consent law) that is up for review this term.

with John Howard being here.

That was written even before this morning's news.  A liberal site like Tom Paine thought she was the best choice.  Unbelievable.  

I'm afraid that this is a serious betrayal by the President.

politicians when they are safely out of office.  I don't care if his name is "George Washington" or "George W. Bush".

We trusted W when he said he wouldn't sign McCain's Incumbent Protection Act.  Ooops.

We trusted W when he said he was for free trade -- then came the steel tarriffs.  Ooops.

We trusted W to defend this country from all terrorist threats -- yet he ignores the hordes streaming across our borders, concealing who knows HOW many OTMs (Other-Than-Mexicans) in their midst.  Worse, his amnesty babblings make him personally responsible for an increase in this horde, as determined by a poll taken by INS (and buried).  Ooops.

Trust W?  Trust No One.

It seems everyone agrees that, on paper, Ms. Clement is a stealth candidate.  "People say" she is a conservative, just like "Sununu said" Souter was.  But nothing is down on paper.  One person even posited that she had deliberately kept her political leanings hidden -- over a 20 year legal career -- for this precise opportunity.

What kind of ambition-driven quisling DOES that?

I don't trust stealth candidates -- not because they MIGHT turn out to lean left, or lean right -- but because of what that quality, the deliberate and long-standing ambition-oriented self-censorship, says about the candidate's character.

Give me a Luttig, and let the battle be joined.

Bush will have an annoucement tonight at 9

picks.

I think the Renquiest one is a no brainer.

Beyond that it is all speculation.  Stevens and Ginsberg may be slow to retire and may even hold out in the hopes of a dem in '08.  That is why I want to see good replacements now, so that we don't just end up with the status quo on the court, but real change.

I know there is a parental consent/notification law out of NH for this term, and I think the federal partial birth abortion ban is in the chute for either this term or the next.

I don't know if any state partial birth abortion laws are scheduled, but there are several that have been overturned (or affirmed) working their way through the system.

http://bench.nationalreview.com/archives/069940.asp

Yes, the real fight will be over the third retirement and on.

Rehnquist's replacement wouldn't change the balance of the Court.  Like with Clement, the Dems will make a little noise to appease their base and let him through.

The Dems are likely counting on there only being two Bush Justices, hoping that Hillary will become president in 2009 to replace Stevens and Ginsberg and Souter and ensure a Roe majority for the next generation.

If Bush gets to replace any of the liberal Justices, all bets are off.

The Dems will go to war.

Chuck Schumer will lead the charge.

Bush may try to appoint AGAG to some liberal spot, like Stevens' or Ginsberg's, in order to avoid an apocalyptic fight and still shift the Court to the right, but if he gets more than one liberal seat to fill, he'll probably go for broke and appoint another originalist.  And even then he'll go for Hatch or someone that won't be so hard to oppose.

So we may never get to see the big battle in the Senate over the deciding vote on Roe during Bush's term.  In fact, my guess is that this WH will go out of its way to avoid that battle.  We may still get a 5-4 anti-Roe majority out of this WH, but it will be done by smiling at Democrats and then stabbing them in the back, not via a full frontal assault.

It seems that some conservatives don't like this.  They WANT a full frontal assault.  This is because they want to be proven right on their issues once and for all.  

Friends, the best way to be proven right on something is to get results.  65% of Americans support Roe.  That won't change until Roe is overturned.  Then, those same Americans will realize that overturning Roe doesn't mean that the Enlightenment will come to an end.  And you'll suddenly see 65% of Americans in support of federalism on the issue.

Winning the argument is accomplished via incremental changes in law and jurisprudence.  It is not accomplished through some Hollywood moment where America is suddenly converted to the judicially conservative point of view via an in-your-face conservative SCOTUS nominee doling out one-liners to Ted Kennedy and Chuck Schumer.  This is not "Mr. Smith Goes to Washington."  This is reality.

The President told us that today we would not have a when. Patience is a virtue, and if Clement is as good as some of us think she will be, then I can wait.

Also, lets not forget that with the way the dems are viewing her answers to "privacy" this may not be a long fight at all. That is of course until someone reads a few blogs and realizes that the question was as bad and ambiguous as an ABC poll.

9th Amendment says:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

How does that infer a right to an abortion in the Constitution?  Was abortion a right retained by women all along, but the founders were too absent minded to just write in the Constitition:

"Women shall have the right to kill their baby fetus so long as they are not fully born."

is literally starting to make me feel sick.  I've got to get away from the computer for a while.

She was talking about a right to privacy, not a right to abortion.

Privacy was a given 220 years ago.  The government lacked the physical capability of invading it, so it's a good thing we have the ninth amendment.

It's really a shame that the Court has grabbed so much power, that you would get so sick about this.

Too many people in the general public agree with Rep. Pelosi ("it's like God spoke"), so we get jumpy, and Red State's servers fall over.

was a bonafide conservative and look at him.

2 appointments, and none of the liberal or liberal leaning moderates may retire-we may end up with a Scalia retirement before a Stevens or a Ginsberg, is why I do not care for this stealth/maintain the status quo on the court nominee.  I am hoping that she in reality is the stealth originalist, but I won't hold my breath while I am waiting.

I don't think there is anything to keep her from being confirmed, and I think the dems would be insane to try to paint her into the extremist corner, but we have been burned by every single stealth candidate, and I am not holding out hopes that this one isn't some of that same fire.

Just so you know, he is about as liberal as a politician can be in Utah.  He is not the one I'd want to the SC.

But I think most pro-lifers just want someone who will send the issue back to the states.

Republicans like to see the states wield more power, right?  So putting the abortion issue with the states would be consistent with that philosophy.

However, the constitution says that no person may "be deprived of life, liberty, or property, without due process of law"

With the recent New London case, we know that the constructionists viewed the taking of property not to be a state matter, they viewed it as unconstitutional (even though due process of law had been followed).  By exact analogy, the taking of a person's life would fall into the same argument.  In other words, a constructionist probably wouldn't view abortion as a states issue, they would view abortion as illegal.  The ONLY grey area is when does a lump of cells become a 'person', which is what the constitution specifies.

I know this logic disagrees with what I suggested above, that each constructionist would view it in their own interpretation.  But its a fairly sound argument that the constitution guarantees a person the right to life, except through due process of law (i.e. death penalty).    To me, the main disagreement between constructionists would be the definition of when a fetus/embryo becomes a 'person'.  At conception?  At viability?  At birth?

Anyone who's been paying attention knows there's not going to be a constitutional right to life from conception declared anytime soon.

Au contraire, I think that's exactly what will happen.  The whole argument of 'kicking it back to the states' is a wolf in sheep's clothing.  Maybe some anti-abortion activists feel the way you claim to feel, but not most.  Remember, they're Pro-Life, aka Anti-abortion.  They're not "anti-federally-allowed-abortion activists".  NONE of their arguments against abortion suggest that they would stop the fight to outlaw all abortions if the matter were kicked back to the states.  If even ONE state legalized abortion they would be screaming at the federal judges to declare it unconstitutional.

In particular, look at the gay marriage issue.  Certainly the constitution doesn't specifically address the right to marriage or define marriage at all.  If anything ever was a matter for states to decide, its the definition of marriage.  Yet, the same people who are opposed to gay marriage are the same people pushing for passage of a constitutional amendment to prevent states like Massachussets from making its own decision about how it wants to define marriage.  In other words, people of such ideological bent don't WANT 50 different states all deciding what to do, they want ONE possibility and one possibility only, and the only possibility they consider acceptable is the one they advocate.  For the gay marriage issue they abhor the thought that two men might get married.  For the abortion issue they abhor the thought that a girl raped by her father at age 12 might want to abort the baby.  Its not the baby's fault after all.

I don't know whether the people here who talk about kicking abortion back to the states really genuinely feel that way or if they're intentionally masking the true intent that I see behind most anti-abortionists, and that is to ban all abortions ... in every state ... in every case.