The rumors are flying. Bush may be preparing to nominate Judge Edith Clement of the 4th Circuit at 9:00 PM ET. The Supreme Court Nomination blog has a Rolling List of Interesting Opinions By Judge Clement:
GDF Realty Investments, Ltd. v. Norton, 362 F.3d 286 (5th Cir. 2004)- Judge Clement joined Judge Edith Hollan Jones’s dissenting opinion from the denial of rehearing en banc. The opinion argued that the Endangered Species Act could not be applied to protect a rare species of underground bug since this act of preservation was not connected with “any sort of commerce, whether tourism, scientific research, or agricultural markets.” The Supreme Court recently denied certiorari.
Bad. This case could have gutted the Endangered Species Act, since most endangered species have no obvious commercial value, and have ranges limited to a single state. While they have potential economic value, and potential scientific or touristic value, that is clearly inadequate for Judge Clement.
ThinkProgress has a team of legal experts, one of whom thinks this same dissent could be used as a basis for overturning the Civil Rights Act. Again, I say bad.
Update: Fixed the link.