Senator Herb Kohl: 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.

Senator Kohl: I would like to turn briefly to the topic of privately-funded judicial seminars, or what some have called junkets for judges. Your financial disclosure forms indicate that you have attended a significant number of these seminars in recent years, including a seminar on environmental law hosted by the Foundation for Research on Economics and the Environment.

As you are probably aware, such seminars have come under intense scrutiny based on evidence that the seminars are one- sided and that they are being funded by corporations and special interest groups that have an interest in Federal court litigation. Senator Kerry and Senator Feingold have introduced legislation that would ban these kinds of trips.

Clement on abortion

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  • Do you think that those Senators are correct to be concerned about these trips, and might you support their kind of legislation?

    Judge Clement: Well, as you know, judicial officers are frequently invited to participate as speakers or participants in programs dealing with judicial education, as well as continuing legal education for lawyers, as well as participate in lectures to law students.

    My experience has shown that the panels and 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 speaker 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.

    Senator Kohl: Do you plan to continue these types of seminars in terms of your attendance in the event that you are confirmed to the Fifth Circuit?

    Judge Clement: Well, some of the seminars are basic economics which, of course, I have completed. And then there is an advanced economics, which I have completed. Some of the seminars are focused on the Constitution, some are focused on environmental issues.

    So to the extent that I haven't already been exposed to that information and to the extent that I am impressed with the faculty that is being presented, I would evaluate the opportunity at that time when presented with the invitation.

    Senator Patrick Leahy: 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?

    Judge Clement: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.

    Senator Patrick Leahy:Are all measures deemed expedient from a national security viewpoint necessarily constitutional?

    Judge Clement: 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.

    Senator Herb Kohl: Do you believe there is a guaranteed right to privacy in the Constitution? Judge Clement: The Supreme Court has made clear that the Constitution guarantees a right to privacy. Senator Herb Kohl: What are the elements of that right? Judge Clement: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. Senator Herb Kohl: Which Supreme Court Cases do you consider the most important in defining the right to privacy? Judge Clement: 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: 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. Senator Herb Kohl: Do limits exist on the right to privacy? If so, what are they? Judge Clement: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. Senator Herb Kohl: Please explain the relationship between the right to privacy and due process protections. Judge Clement: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. Senator Herb Kohl: 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? Judge Clement:As I stated at my confirmation hearing, 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.

    Senator Edward Kennedy: What is your approach to constitutional interpretation where the text of the constitution is ambiguous?

    Judge Clement: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.

    Senator Edward Kennedy: Do you believe the constitution contemplates a ``right to privacy''?

    Judge Clement: 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.

    Senator Edward Kennedy: Do you believe the constitutional right to privacy encompasses a woman's right to have an abortion?

    Judge Clement: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. Biographical information on Justice Clement

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  • The prepared statement of Senator Landrieu follows:

    Statement of Hon. Mary L. Landrieu, a U.S. Senator from the State of Louisiana

    Mr. Chairman and Members of the Committee, I am very pleased to offer my support to the nomination of Edith Joy Brown Clement, of New Orleans, Louisiana, nominee to the United States Fifth Circuit Court of Appeals.

    It is most fitting that an individual of Judge Edith Brown Clement's high standards and eminent qualifications be nominated for this very important position.

    Edith Brown Clement comes to the Committee with impressive credentials, having served since 1991 as a United States District Court Judge for the Eastern District of Louisiana. During this period, she has personified judicial excellence while handling a Diverse caseload. Her distinguished ten years as a federal judge will serve her well on the 5th Circuit Court of Appeals. In addition, Judge Edith Brown Clement received a Stellar Legal Education as a 1972 graduate of Tulane University School of Law.

    Judge Edith Brown Clement has a distinguished career in law and public service.

    Among the professional organizations to which Judge Edith Brown Clement holds membership are the New Orleans chapter of the Federal Bar Association, of which she was president from 1990 to 1991, and the American Bar Association, where she served as chair of the Admiralty & Maritime Law Committee, Torts and Insurance practice section. Furthermore, Judge Edith Brown Clement has been admitted to practice before the Supreme Court of the United States, as well as the United States Fifth and Eleventh Circuits.

    It is important to note that during her career, Judge Edith Brown Clement has also served with distinction in a number of responsible positions outside the legal profession. She has been very active in her community. She was a founding board member of the New Orleans Child Advocacy Program. Currently, she also serves on the Sugar Bowl Committee.

    Prior to her appointment as a United States District Court Judge, Judge Edith Brown Clement was an Associate and Partner in the Venerable Law Firm of Jones, Walker, Waechter, Poitevent, Carrere & Denegre from 1975-1991. She also served as a Law Clerk to the Honorable H.W. Christenberry, U.S. District Judge for the Eastern District of Louisiana, from 1973 to 1975.

    Judge Edith Brown Clement is married to Rutledge Clement, and has two children: Her son Carter and her daughter Lanier. of course, I would be remiss if I did not mention that her mother, Edith Brown, as well as Rutledge and Carter are in attendance this afternoon.

    I have found Edith Brown Clement to be very professional and competent as a Judge and Community Leader. Moreover, I am confident she possesses the necessary Judicial temperament to serve on the Fifth Circuit Court of Appeals.

    In sum, I believe that Judge Edith Brown Clement possesses the integrity, appropriate demeanor, and aptitude for legal scholarship that will enable her to serve well and with distinction if she is confirmed.

    Mr. Chairman, Edith Brown Clement is eminently qualified to serve as a Judge to the Fifth Circuit Court of Appeals, and I strongly urge the Committee to act favorably on her nomination.

    Senator Kohl: We thank you, Senator Landrieu.

    Senator McConnell, do you have a question of Judge Clement?

    Senator McConnell: I really had not intended to ask a question of Judge Clement. Listening to her answer, I just want to commend you for attending these seminars. I think they are an excellent idea. I also want to commend you for not ruling out attending them in the future, and to suggest to you that there will be vigorous opposition to the bill to which Senator Kohl referred which would prevent judges from attending such seminars.

    I congratulate you on your nomination and look forward to supporting it.

    Judge Clement: Thank you, Senator.

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