Susan Lucci in judicial robes.

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Oct. 3 2005 7:40 PM

Susan Lucci in Judicial Robes

A brief history of Edith Jones, eternal Supreme Court also-ran.

Always a circuit judge, never a justice. Click image to expand.
Always a circuit judge, never a justice

And once again, the Supreme Court nominee is … not Edith Jones.

Edith Jones, a judge for the Fifth U.S. Court of Appeals in New Orleans, is to the Supreme Court as Susan Lucci is to the daytime Emmys and Philip Roth is to the Nobel Prize. Well, not precisely. Lucci finally won an Emmy in 1999, after 18 previous nominations. And Roth's chances of finally winning the Nobel are currently thought to be on an upswing. Jones, on the other hand, is starting to look like damaged goods.

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Presidents have been not choosing Jones since 1987, when Ronald Reagan, now deceased, was trying to figure out who to nominate for the Supreme Court after the Senate rejected Robert Bork. Jones' name turned up on a list of possible nominees reported by United Press International in late October 1987; she was a particular favorite, reported the New York Times, of Sen Orrin Hatch, R.-Utah. But Reagan nominated Douglas Ginsburg instead. Then Ginsburg admitted that he'd smoked marijuana in the 1960s and 1970s, and he had to withdraw his nomination. Once again, Jones was reported to be under consideration. But the nod went to Anthony Kennedy.

Jones' name got mentioned even when there weren't any vacancies. In December 1989, the "Washington Whispers" column in U.S. News & World Report, noting that the Supreme Court included three octogenarians, said there was bound to be a retirement soon and mentioned Jones among the leading candidates. Six months later, Ethan Bronner of the Boston Globe reported speculation that Sandra Day O'Connor, who had recently been treated for breast cancer, would step down and be replaced by one of three women. One was Edith Jones. A couple of weeks after that, U.S. News once again said that Jones was a logical choice for the court. One obvious advantage Jones enjoyed was that she had once been a law partner of Bush's secretary of state and close friend, Jim Baker.

Not long after, in late July 1990, one of the octogenarians finally retired. William Brennan called it a day, and once again the list of possible candidates included Edith Jones, now a favorite of the anti-abortion movement, though she had never ruled in an abortion case. But some newspaper accounts described her as "moderate." Hatch was still touting Jones. The nomination went to David Souter. According to the Washington Post, Jones was "the runner-up."

A year passed. Richard Thornburgh resigned as attorney general so he could run for the Senate from Pennsylvania. (He lost.) U.S. News floated Jones as a possible replacement. I forget who got the job instead. (Wait, it's coming...William Barr.) Then a second octogenarian, Thurgood Marshall, retired. Jones was widely mentioned as a possible nominee. But the nomination went to Clarence Thomas. At a press conference, President George H.W. Bush was asked why he hadn't chosen Jones, who had so narrowly missed being nominated for Brennan's seat. "Well, she's a very able justice, judge," Bush said.

She was given consideration then and now, and I just felt that Judge Thomas with his seasoning now is best prepared to serve. It was that. It was not a demeaning or putting down of anybody else, because there were some very good names brought to my attention.

And I might say, you know, this just happened last week, and some will be saying, "Well, was the screening process thorough?" And the point I want to make is that I have met several times since Judge Souter's sending to the bench to discuss what would happen if a Supreme Court Justice stepped down, with no one particularly in mind, but just to be ready. So, consideration was given to a wide array of candidates, but we'd already done a lot of homework.

But you ask about Edith—Edith, who comes from my hometown. And I have nothing but high regard and high esteem for her. But I decided, on the advice of people that I trust, that this is the way to go.

By now, Bronner at the Globe was calling Jones "the eternal bridesmaid." And it was only 1991!

What the hell was the matter with this woman, anyway? According to the National Law Journal, Jones was now a "far-right ideologue." The Bush administration worried that she'd be another Robert Bork—a magnet for liberal criticism who would go down in flames.

Then Bill Clinton got elected and everybody stopped talking about Edith Jones' chances of getting onto the Supreme Court.

But you can't keep a good woman down. During the 2000 election, Jan Crawford Greenburg mused in the Chicago Tribune that if George W. Bush got himself elected president, among the candidates for his first Supreme Court nomination would likely be you-know-who. Angie Cannon said the same thing two months later in U.S. News. In November 2002, Stuart Taylor called Jones a "brainy, conservative woman" whom Bush might nominate to the court when a vacancy emerged. Two years later, there was still no vacancy, and Edith Jones rejected an attempt by Norma McCorvey, * the "Jane Roe" of Roe v. Wade (who had since changed her views on abortion), to reopen the case. But Jones also wrote a separate, concurring opinion, calling Roe "an exercise of raw judicial power" that made a mockery of the court's consideration of "dozens of death penalty cases each year."

"What about Edith Jones?" Larry Kudlow asked Pat Buchanan on MSNBC in November 2004 (when there was still no vacancy on the Supreme Court).

"She's terrific," Buchanan answered.

Late in 2004, Chief Justice William Rehnquist became severely ill. Jones' name was bandied about. John Fund wrote in The American Spectator that Jones had "strong champions within the conservative Federalist Society." But Rehnquist, stubborn old codger that he was, wouldn't die! Finally, in July of this year, Sandra Day O'Connor announced that she would retire. On CNN, Kyra Phillips reported that "when talking about the replacements and the shortlist, if you will, one name, one female name is out there, Edith Jones." On Fox News Sunday, Charles Krauthammer said Jones "was considered 15 years ago by, you know, Bush's father when he nominated Souter. So it would be a kind of a poetic justice of nominating her. ..." The nomination went to John Roberts.

Finally, Rehnquist died. Bush decided to make Roberts his nominee for chief justice, which meant he had to find someone else to replace Sandra Day O'Connor. O'Connor was the first woman on the Supreme Court. How could her replacement not be a woman? But by now (O cruel fate!) Edith Jones was frequently being referred to as "the other Edith," because Edith Clement, also a judge on the Fifth U.S. Court of Appeals, was thought to have the inside track.

Once Edith Jones had been the runner-up to the president's choice for the Supreme Court. Now she was merely the runner-up to the president's choice for women named Edith on the Fifth Circuit for the Supreme Court.

Hurricane Katrina came. New Orleans flooded. A nation wept for the Big Easy. Surely one of the waterlogged Ediths would be compensated with a nomination to the Supreme Court. Back in 1987, when Jones had been 38, there'd been some worry that she might be too young to go on the court. Now Robert Novak was writing that, at 56, Jones was "near the outer age limit."

The nomination went to White House Counsel Harriet Miers (who, incidentally, is four years older than Jones). William Kristol, editor of the conservative Weekly Standard, pronounced himself "disappointed, depressed and demoralized." He continued, "I'm disappointed because I expected President Bush to nominate someone with a visible and distinguished constitutionalist track record." He then listed five female candidates he would have found preferable. Third down the list was … well, you don't really need me to tell you, do you?

Since Edith Jones was first considered for the Supreme Court, the Soviet Union has fallen, the World Wide Web has been invented, and the long-playing vinyl record has been rendered obsolete. If I were Jones, I'd be starting to suspect it isn't going to happen.

Correction, Oct. 5, 2005: An earlier version of this column misstated Jane Roe's real name as "Norma Corvey." (Return  to the corrected sentence.)

Timothy Noah is a former Slate staffer. His  book about income inequality is The Great Divergence.

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