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Senate Democrats might want to keep Janice Rogers Brown out of the nation’s capital and far from a U.S. Supreme Court post down the road, experts say, but they could be shooting themselves in the feet if they press too hard. It might even be wise, some say, if Democrats go all out to expedite Brown’s likely appointment to the D.C. Circuit U.S. Court of Appeals. Doing so could ensure that Gov. Gray Davis gets to replace her on the California Supreme Court long before facing a recall vote that could wind up letting a Republican make that decision. On Thursday, after both The Recorder and The Washington Post reported that Brown could be President Bush’s nominee for one of three vacancies on the D.C. court, pundits around the nation were buzzing about what might transpire if the 54-year-old conservative black woman had to face confirmation hearings — especially when Bush’s recent nominees have faced so much heat. “Every Bush nominee is facing a difficult time with the obstructionist campaign that’s going on in the Senate,” said John Nowacki, director of legal policy for the politically conservative Free Congress Foundation, a Washington, D.C.-based think tank. “But at the same time, there are a lot of positive aspects to [Brown's] nomination, and we’ll have to see whether the Democrats want to keep nearly a third of the D.C. Circuit vacant. “She’s a good nominee,” Nowacki continued. “She appears to have a constitutionalist judicial philosophy that respects the separation of powers.” Clint Bolick, vice president of the Washington-based Institute for Justice, which bills itself as the “nation’s premier libertarian public interest law firm,” predicted that Brown’s life experience — going from a poor Southern sharecropper’s daughter to a seat on the California Supreme Court — could be a major factor in how she’s treated during any confirmation fight. “She has risen to a position of great prominence totally by her own bootstraps,” said Bolick, who works out of the institute’s Phoenix office. “She’ll be one of the first black women on the U.S. court of appeals anywhere and the first on the D.C. Circuit. These are all milestones that I think it would be difficult to thwart.” But nothing is a given in judicial appointment politics. When President Bush nominated Gibson, Dunn & Crutcher appellate partner Miguel Estrada to the D.C. Circuit, pundits predicted his Latino roots — he was born in Honduras — would help him through the confirmation thicket. Instead, he’s been held up by a Democrat-led filibuster that Republicans haven’t been able to break. Professor Erwin Chemerinsky of the University of Southern California Law School sees another slugfest. Calling Brown a “far-right” pick, he predicted her confirmation would be highly controversial. “She has a conservative track record on hot-button issues like abortion and affirmative action,” he said, “and I would expect and hope that Democrats would challenge her the same as the other very conservative Bush nominees.” If the Democrats do turn their sights on Brown, they’ll probably focus on her opinions on affirmative action and parental consent for abortion — as well as her tendency to assault her fellow justices in dissents. “They won’t criticize her background, they won’t criticize her race, they won’t criticize her gender,” said Vigo “Chip” Nielsen Jr., a partner in the Mill Valley office of San Francisco’s Nielsen, Merksamer, Parrinello, Mueller & Naylor. “They will criticize her sharp tongue in a number of decisions.” A couple of Bay Area law professors who have watched Brown during her seven-year career on the California Supreme Court say Democrats could lose credibility if they oppose Brown. “I don’t think she’s the kind of ideologue they’ve really gone after,” Santa Clara University School of Law professor Gerald Uelmen said Thursday. “Her opinions are feisty, but they’re certainly mainstream conservative. I wouldn’t think it would be perceived Bush was pushing the envelope with this appointment.” Stephen Barnett, a law professor emeritus at Boalt Hall School of Law, said Brown could turn out to be like U.S. Supreme Court Justice David Souter, who votes far more liberal than was expected. Or she could be like Alex Kozinski, a Ninth Circuit U.S. Court of Appeals justice who’s a conservative libertarian. “She also has a libertarian bent,” Barnett said, “and no one knows where she will end up ideologically, including her.” Howard Bashman, author of the “How Appealing” Web site, which keeps track of judicial and legal happenings nationwide, called Brown’s potential nomination a “brilliant move” by Bush, and said later that it could persuade home-state Sen. Dianne Feinstein, a member of the Judiciary Committee, to pressure fellow Democrats into putting Brown on the bench. “She’s shown on the California Supreme Court that she’s able to do the work and distinguish herself,” said Bashman, a Philadelphian who chairs the appellate litigation group for Pittsburgh-based Buchanan Ingersoll. “No one can say, as they unfairly say about [Clarence] Thomas, that she’s latching onto someone else in deciding what she’s thinking. She is clearly her own person.” Opponents are lining up already, however, in part because the D.C. Circuit is seen by many as a steppingstone to the U.S. Supreme Court. Eva Paterson, a longtime San Francisco civil rights lawyer, said anti-Brown forces are gathering. “From what I understand, she’s a very nice person personally,” Paterson said, “but to me she is ideologically aligned with [Antonin] Scalia, Thomas and [William] Rehnquist. We’re one vote away from overturning Roe v. Wade perhaps and certainly one vote away from overturning affirmative action — and she would be that vote.” But others say it might be best for California Democrats to push for a quick confirmation so that Davis can put another Democrat on the state Supreme Court before chancing a recall. “It’s a key appointment,” Santa Clara’s Uelmen said. “It really will shift the balance. If you get another justice like [Carlos] Moreno … a lot of 4-3 decisions are going to go the other way.” Brown did not return a call for comment, and the White House refused to “speculate on personnel matters.”

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