Professor Ribstein provides a nice endorsement for 5th Circuit Judge Edith H. Jones of Houston as the next Associate Justice for the U.S. Supreme Court, and I wholeheartedly concur.
Judge Jones is widely recognized as an outstanding jurist and one of the nation?s leading experts on bankruptcy law. A 1974 graduate of the University of Texas Law School, Judge Jones served as an editor of the Texas Law Review and, upon graduation, she joined the law firm of Andrews, Kurth, Campbell & Jones, L.L.P. (now Andrews & Kurth, L.L.P.), where she was the first woman to make partner in the history of the firm. While at Andrews & Kurth, Judge Jones became involved in the small but emerging Texas Republican Party and, in so doing, created her strong political ties with the Bush Family.
Judge Jones was nominated by President Reagan to become a judge on the Fifth Circuit, and she was confirmed by the U.S. Senate on April 3, 1985. During her almost 20 years on the bench, Judge Jones has written nearly six hundred opinions and she has served as a member of the Advisory Committee on Bankruptcy Rules for the Judicial Conference of the United States and the National Bankruptcy Review Commission. Judge Jones has also authored or coauthored more than 15 publications on the topics of bankruptcy law, mass tort litigation, arbitration, religion and the law, judicial workloads, and the judicial selection process. When Justice William J. Brennan, Jr. resigned from the Supreme Court in 1990, President George H.W. Bush considered Judge Jones for the Supreme Court before he ultimately nominated Justice David H. Souter to replace Justice Brennan.
If Judge Jones is nominated, then there is little question that opposition to her candidacy will coalesce arround her recent concurring opinion in McCorvey v. Hill, No. 03-10711 (5th Cir. Sept. 17, 2004). In that opinion, Judge Jones wrote both a panel opinion turning aside a new challenge to abortion rights by the original “Jane Roe” — Norma McCorvey — and a passionate concurring opinion in which she recommends that the Supreme Court reconsider its controversial decision in Roe v. Wade.
Although she was the original plaintiff in Roe, Norma McCorvey has since become an anti-abortion activist. In that role, she began a new challenge to Roe in U.S. District Court in June 2003. McCorvey filed a Rule 60(b) motion, which allows a federal court to relieve a party from an earlier judgment under certain limited circumstances.
In the District Court case, McCorvey’s lawyers offered more than 5,000 pages of affidavits and other written evidence in seeking to undermine the foundation of the decision in Roe v. Wade. Included among the materials were 1,000 affidavits from women who had had abortions expressing regret over their choice. The District Court summarily denied the motion on the grounds that it was simply too late to revisit the original judgment.
The appeal of that decision went to the Fifth Circuit and oral argument on the appeal was scheduled for this past February. However, oral argument was cancelled and the Fifth Circuit panel promptly issued its decision, which was written by Judge Jones. The panel decision upheld the District Court’s denial of McCorvey’s motion, but not on the finding that she was pursuing her case too late. Rather, the panel held that the controversy had become moot — inasmuch as Texas no longer seeks to criminalize abortion after Roe, the panel reasoned that there is no current controversy giving a court power to decide McCorvey’s motion.
However, attached to the panel’s rather straightforward opinion is Judge Jones’ separate concurring opinion (it is somewhat unusual that the author of the panel’s opinion also writes a concurring opinion, but not unheard of). In her concurring opinion, Judge Jones points out that the evidence supporting McCorvey’s motion “goes to the heart of the balance Roe struck between the choice of a mother and the life of her unborn child.” Judge Jones also notes that the evidence suggests that women may suffer for years after an abortion, that several other Supreme Court assumptions in Roe are probably wrong, and that new medical science suggests how much pain a fetus suffers:

“In sum, if courts were to delve into the facts underlying Roe‘s balancing scheme with present-day knowledge, they might conclude that the woman’s ‘choice’ is far more risky and less beneficial, and the child’s sentience far more advanced, than the Roe Court knew.”

Nevertheless, Judge Jones goes on to point out that the Supreme Court’s decision in Roe to constitutionalize abortion policy has had the consequence of creating a situation in which the Supreme Court likely will not be able to re-examine the factual assumptions of Roe in the context of a court record because no ‘live’ controversy can arise over the issues involved. As Judge Jones notes, “the Court’s constitutional decisionmaking leaves our nation in a position of willful blindness to evolving knowledge. . .”
Opinions such as this may make Judge Jones politically untenable for the Supreme Court confirmation process. But change does not come easily, and here’s hoping that the Bush Administration has the political courage to nominate this independent thinker to our country’s highest court.