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California Supreme Court Justice Janice Rogers Brown could be on her way to Washington, D.C. Perhaps not to the U.S. Supreme Court, as many have speculated, but rather to the D.C. Circuit U.S. Court of Appeals — often considered a steppingstone to the nation’s highest court. California Chief Justice Ronald George and others confirmed Wednesday that FBI agents and Justice Department investigators were in San Francisco late last month conducting background checks on Brown, who joined the California court in 1996, for a D.C. Circuit slot. Brown was out of the state Wednesday, and her staff said she was not commenting on the background check, nor whether an appointment to the D.C. court is imminent. George said the FBI talked with him on June 19, then about a week to 10 days later he was contacted by the Justice Department. He was told that the background check was being done on an “expedited basis.” The D.C. Circuit is often seen as the second-highest perch because of its jurisdiction over claims against the federal government, making it a lightning rod for partisan fights over judicial nominations. Three of the current Supreme Court justices — Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg — served on that court, with Thomas’ appointment coming just one year before his elevation to the high court. There are currently three vacancies at the D.C. Circuit. President Bush nominated Miguel Estrada to one of those slots more than two years ago. A vote on the Gibson, Dunn & Crutcher appellate partner has been held up since earlier this year by a Democrat-led filibuster that Republicans haven’t been able to end despite multiple cloture votes. Steven Merksamer, a partner in Sacramento’s Nielsen, Merksamer, Parrinello, Mueller & Naylor who hired Brown to his firm years ago and got her into Republican politics, confirmed Wednesday that the FBI and the Justice Department had talked to him in late June, but would not speculate about whether the nomination was imminent. “I don’t know if that’s true or not,” he said, “but I wouldn’t be surprised if she’s appointed to the federal appeals bench.” Another source familiar with the nomination process said he was contacted by the FBI on June 20, when media speculation was rampant about the possibility that Bush would fill a Supreme Court vacancy with Brown if Chief Justice William Rehnquist or Justice Sandra Day O’Connor retired. With no vacancy at the high court, the D.C. Circuit might make sense, the source said. “The plan,” he said, “might be to put her in a more visible position.” Brown, a 54-year-old Pete Wilson appointee and conservative black woman, has been considered an ideal choice for the Bush administration. Raised in the rural South as the daughter of a sharecropper, she rose steadily in California Republican circles after graduating from the UCLA School of Law. She became Republican Gov. Wilson’s legal affairs secretary in 1991 and was appointed to Sacramento’s Third District Court of Appeal in 1995. She has some experience in ugly confirmation fights, though nothing to compare with the blood sport practiced in Washington. In 1996, she was nominated to the state Supreme Court, but it was leaked that she had been rated “not qualified” by the Judicial Nominees Evaluation Commission. The commission said she lacked sufficient legal and judicial experience and that she improperly injected her political philosophy into her judicial opinions. She was ultimately confirmed by the Commission on Judicial Appointments, but the episode left Gov. Wilson and many Republicans embittered at the JNE Commission as well as its overseer, the State Bar of California. While on the state Supreme Court, Brown has irked other justices with sharp dissents. She once called the majority “philosopher kings” when they voided a law requiring minors to obtain parental consent for abortions and accused them of being “wimps” in another case when they let the legislative and executive branches appoint some of the judges of the State Bar Court. Brown also angered minority groups in 2000 when she authored the opinion that affirmed Proposition 209, the controversial ballot measure that banned racial and gender preferences in state contracting and hiring. A lawyer who knows Brown personally and has high political connections speculated Wednesday that the California Republican Party would likely not appreciate losing Brown at this time. “Obviously,” he said, “if she leaves, whoever takes her place would make a change on the California Supreme Court. And it’s already a close divide on the court right now.” If the Bush administration appoints Brown to a federal court position and she’s confirmed, it runs the risk of Gov. Gray Davis surviving the current recall campaign and getting to appoint another Democrat to join Justice Carlos Moreno on the state’s high court.

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