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Too often, the best advice for those who want to rise in today’s judiciary is “keep your head down.” Unfortunately, the surest path to confirmation in this climate is anonymity. Judges who have compiled a track record of strong positions on controversial issues will be passed over. They shouldn’t be, because a willingness to stick your neck out and accept criticism is often the hallmark of a great judge. A president or a governor should be willing to occasionally risk a bruising confirmation battle to elevate a jurist with great potential to make a difference. That’s precisely what President George W. Bush has done in nominating California Supreme Court Justice Janice Rogers Brown to the D.C. Circuit U.S. Court of Appeals. He should be applauded for this appointment, and she should be promptly confirmed. But that’s unlikely to happen. The judicial confirmation process has become mired in “payback” and special interest politics. Justice Brown will be targeted by liberals because of the opinions she authored in controversial abortion and affirmative action cases. On both of these issues, she voted the same way as Stanley Mosk, a great “liberal” jurist with whom Justice Brown had a lot in common. Although I frequently find myself in disagreement with Justice Brown’s opinions, I have come to greatly admire her independence, her tenacity, her intellect and her wit. It’s time to refocus the judicial confirmation process on the personal qualities of the candidates, rather than the “hot button” issues of the past. We have no way of predicting where the hot buttons will be in the years to come, and our goal should be to have judges in place with a reverence for our Constitution, who will approach these issues with independence, an open mind, a lot of common sense, a willingness to work hard and an ability to communicate clearly and effectively. Janice Rogers Brown has demonstrated all of these qualities in abundance. Gerald F. Uelmen is a professor at Santa Clara University School of Law.

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