Edith Brown Clement

Background

Clement was born in Birmingham, Alabama, the daughter of Erskine John Brown and the former Edith Burrus. In 1969, she received a Bachelor of Arts degree from the University of Alabama at Tuscaloosa. In 1972, she obtained a Juris Doctor from the Tulane University Law School in New Orleans. From 1973 to 1975, she clerked for Judge Herbert W. Christenberry at the United States District Court for the Eastern District of Louisiana (1973–1975), after which she worked as a maritime attorney in private practice in New Orleans until 1991.

On October 1, 1991, President George H. W. Bush nominated Clement to the United States District Court for the Eastern District of Louisiana, also in New Orleans. She was confirmed by the Senate to this post on November 21, 1991 by a vote of 99–0, and received commission on November 25, 1991. In 2001 she served as chief judge of this court, before being nominated to the Fifth Circuit.

Fifth Circuit nomination and confirmation

Clement was nominated to her current seat on September 4, 2001 by President George W. Bush to fill a seat vacated by Judge John Malcolm Duhé, Jr., who had assumed Senior status. President Bill Clinton in 1999 had nominated Louisiana lawyer H. Alston Johnson III to the seat on the Fifth Circuit created by Duhé's vacancy, but the United States Senate never held a hearing or took a vote on Johnson's nomination. Clement was confirmed by the Senate on November 13, 2001 by a vote of 99–0, and received her commission on November 26, 2001. She was the first judge Bush appointed to the Fifth Circuit who was confirmed by the Senate.

Judge Clement is a member of the Maritime Law Association of the United States, the Federal Bar Association, the American Law Institute, the Federalist Society, the Tulane Law School's Inn of Court, and the Committee on the Administrative Office of the Judicial Conference of the United States.

Notable opinions

Clement has a reputation as a conservative jurist and a strict constructionist who strongly supports principles of federalism. She has written few high-profile opinions.

She wrote for the majority in Vogler v. Blackmore, reducing pain and suffering damages awarded by a jury to a mother and daughter who were killed in a car accident. The basis of her ruling was the lack of specific evidence about the daughter's "awareness of the impending collision." Large damage awards to the father and husband due to the loss of society in his wife and daughter were affirmed.

In Chiu v. Plano Independent School District, Clement held that a school district's policy requiring the preapproval of fliers handed out at a school event violated the First Amendment free speech rights of would-be protestors.

In United States v. Harris, Clement again wrote for the majority, this time reinstating the sentence of a police captain convicted for violation of federal civil rights laws in using excessive force. The captain moved to vacate, arguing that his counsel had been insufficient. Clement and the court held that the representation had been reasonable.

Clement wrote a unanimous opinion for the 5th Circuit in Tarver v. City of Edna. She upheld officers' appeal of qualified immunity for reasonably arresting a father who was interfering with the return of a child to its rightful custodian. Qualified immunity also protected officers from the plaintiff's accusation of excessive force in using handcuffs and confining him to the police car as part of the arrest. Officers also, however, slammed the car door on his foot and head, and the plaintiff's excessive force claim under this heading was remanded.

Clement has joined other conservative judges in dissenting in Commerce Clause cases that implicate federalism. In U.S. v. McFarland, she argued that the Commerce Clause power did not enable Congress to regulate local robberies. In GDF Realty Investments, Ltd. v. Norton Clement argued that the Endangered Species Act needed a commercial nexus to enable regulation of endemic rare species.

In 2010, Judge Clement joined Judges Garza and Owen in affirming the dismissal of the complaint in Doe v. Silsbee Independent School District. The plaintiff ("H.S.") was a cheerleader who was ordered by her high school to cheer for her alleged rapist, a basketball player named Rakheem Bolton. H.S. refused and was kicked off the team. She sued, claiming a violation of her First Amendment right to free speech. The Eastern District of Texas, Judge Thad Heartfield, granted the school district's motion to dismiss, and Judges Clement, Garza, and Owen affirmed. H.S. was ordered to pay the school $45,000 in legal fees for filing a "frivolous" lawsuit.

Possible Supreme Court nomination

Just prior to the nomination of John G. Roberts in the summer of 2005 to replace retiring justice Sandra Day O'Connor, it was widely circulated in the press that Clement would receive the nomination. Following the death of Chief Justice William Rehnquist, and the changing of John G. Roberts' nomination from Associate Justice to Chief Justice by President Bush, the media mentioned Clement again as a possible choice to fill the vacant Associate Justice seat. Much of this speculation was because Clement is a conservative woman with a limited paper trail on controversial issues. Time, however, stated that Clement's chances were diminished because the Bush Administration believed her to be guilty of excessive self-promotion. Eventually, George W. Bush chose White House Counsel Harriet Miers as his nominee to succeed O'Connor, but with the withdrawal of Miers's nomination, Clement again was thought to be a potential nominee until the nomination of federal judge Samuel Alito, who was ultimately confirmed.