Keep you eye on Justice Brown. She should be the first black female on the Supreme court. The Dems may filibuster her.
Bush May Tap Calif. Justice for Federal Seat
Appointment From State Supreme Court Would Bolster Conservative Tilt in D.C. Circuit
By Charles Lane
Washington Post Staff Writer
Thursday, July 17, 2003; Page A19
President Bush plans to nominate Janice Rogers Brown, a justice of the California Supreme Court, to a seat on the powerful U.S. Court of Appeals for the District of Columbia Circuit, according to Republican sources familiar with the Bush administration's judicial nominations process.
An eloquent conservative whose sometimes sharply worded writings include a ruling against affirmative action and a dissenting opinion in favor of a state parental-consent law for teenage abortions, Brown, 54, would add to the recent rightward tilt of a court whose current roster of nine judges is made up of five Republican appointees and four Democratic appointees.
Brown, who has served on the California high court for seven years, would also become the second African American woman judge on the D.C. Circuit, which is often considered second only to the Supreme Court in the federal judicial hierarchy. Judith W. Rogers, an appointee of President Bill Clinton, was the first.
Brown has been frequently mentioned as a possible Bush nominee for the Supreme Court, and legal analysts said that her elevation to the D.C. Circuit could mean that the president is grooming her for the high court. Three current members of the Supreme Court -- Justices Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg -- served on the D.C. Circuit.
The D.C. Circuit is already at the center of a political battle between Bush and Senate Democrats, who are filibustering the nomination of Washington lawyer Miguel A. Estrada to the court. John G. Roberts was recently confirmed to fill a ninth seat on the court, but Democrats and liberal interest groups have expressed opposition to the nomination of White House aide Brett M. Kavanaugh, which is planned by the White House but has not yet been formally announced.
Both supporters and critics of Brown suggested that her nomination could provoke intense debate as well.
"She's very clear about her views on controversial legal issues," said Clint Bolick, a conservative legal activist who has lobbied the White House to promote Brown. "That will galvanize support but also inspire opposition."
However, Brown's backers believe it would be politically difficult for Democrats to oppose her, in part because there are only four black women on the federal appellate bench and in part because her record includes some rulings liberals supported, such as a case in which she voted to suppress evidence police had gathered by violating the defendant's constitutional rights.
The White House declined to comment, as did Brown, who is undergoing a background check. In a brief interview in Washington on May 24, she played down speculation about the Supreme Court, saying, "It's nice to be mentioned."
Brown was in town to deliver a commencement address at Catholic University's Columbus School of Law. The speech was an extended critique of what Brown saw as the moral relativism of modern society.
"Scientists and philosophers have spent the last hundred years trying to organize society as if God did not exist and the last two centuries seeking to reshape society through industrial development, social engineering and various forms of wealth creation and distribution," she told the graduates. "This process was supposed to bring forth a new man, a new, improved humanity. The project was a miserable failure."
In 1997, Brown dissented from a 4-3 ruling in which the California Supreme Court struck down a state law requiring girls younger than 18 to ask their parents before getting an abortion.
Chastising the majority for "judicial activism," Brown wrote: "When fundamentally moral and philosophical issues are involved and the questions are fairly debatable, the judgment call belongs to the Legislature."
In 2000, she wrote a majority opinion striking down a San Jose plan that called for city contractors to seek minority subcontractors; the policy, she ruled, violated Proposition 209, the 1996 voter-adopted state constitutional amendment that banned racial preferences.
Brown argued that Proposition 209 was intended to create colorblind government decision-making in California; a dissenting justice accused her of "presenting an unfair and inaccurate caricature of . . . affirmative action programs."
"She's generally perceived as the most conservative justice on a very conservative court," said Erwin Chemerinsky, a law professor at the University of Southern California who is active in liberal causes.
Another issue in the struggle over the D.C. Circuit is whether its workload warrants filling all 12 of its authorized judgeships.
During the Clinton administration, Republican senators objected to some of Clinton's nominees to the D.C. Circuit, saying that the court needed only 10 judges. Bush has reversed that position, saying that he intends to submit nominations for all judicial vacancies.
Thus, while on paper there is a vacancy each for Brown, Estrada and Kavanaugh, political realities may mean that they would contend against one another for one or two spots.
Given the entrenched opposition to both Estrada and Kavanaugh, Brown may have the best shot, sources familiar with the confirmation process say.
Brown, a graduate of UCLA Law School, was born in Alabama during segregation and lived near military bases in Texas, where her father served in the Air Force, before moving with her family to Sacramento in 1964.
She has worked as a private attorney, a lawyer in the California attorney general's office, and as a top legal adviser to Wilson, who appointed her in 1994 to the California Court of Appeal, and then, in 1996, to the state Supreme Court.
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