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Even in an era when bitter confirmation fights are routine, the nomination to the federal bench of California Supreme Court Justice Janice Rogers Brown is shaping up to be one of the most contentious yet for the Bush administration. Attacks on Brown have been under way since the day she was nominated almost three months ago, with critics denouncing the 54-year-old’s judicial philosophy and temperament, and vowing to block a conservative nominee they fear is being groomed for the U.S. Supreme Court. Brown’s hearing before the Senate Judiciary Committee is scheduled for Oct. 22, and supporters say Brown had better be prepared for rough sailing. “I expect she’ll get tougher treatment than Miguel Estrada,” says Eric Claeys, a conservative assistant professor at St. Louis University School of Law who has written about the Senate confirmation wars. “She has a paper trail, and Estrada didn’t.” Sacramento lawyer Steven Merksamer thinks Claeys could be correct and says it’s a shame his old friend likely will face hostile questioning. “She is smart. She is charming. She understands the role of a judge, and she fulfills that role with great skill, confidence, and integrity,” the Nielsen, Merksamer, Parrinello & Mueller partner says. “Now what I worry is, will it matter how well she does? Will senators simply believe this is a Bush appointee they simply don’t want and not vote on her qualifications?” The bashing of Brown — nominated in July to the U.S. Court of Appeals for the D.C. Circuit — is expected to get more intense as the confirmation date approaches. Opponents are actively lobbying senators to vote against her, and a highly critical, Aug. 28 report by the NAACP and People for the American Way is being distributed throughout the Senate. Also troubling for Brown is that no major black law group backs her, now that the National Bar Association and the California Association of Black Lawyers have joined the National Association for the Advancement of Colored People in panning the justice. Nan Aron, president of the left-leaning Alliance for Justice, says opposition will come from all fronts — not only black groups, but also women’s organizations and pro-choice associations. “We will do everything we possibly can to ensure that she’s not confirmed,” Aron says. “We are working on a report and plan to release it to coincide with the announcement of her hearing.” Brown is famous for tart dissents that lash out at her colleagues. But one person familiar with the California Supreme Court says she might face more scrutiny for some over-the-top speeches. “I had initially thought that she might be spared a filibuster,” this person says, “but I think she’s basically in line with the selected handful that the full Senate has reserved for that procedural mechanism — just because she has a lengthy track record as a judge, and her speeches, in particular, say more about her than the opinions.” For instance, in a May 24 commencement speech at Catholic University of America’s Columbus School of Law, Brown chided scientists and philosophers, claiming that they had tried for 300 years to reshape society “as if God did not exist.” She said they were trying to bring forth “a new and improved humanity” and failed. She also took a slap at any beliefs other than Judeo-Christian beliefs in a reference to the events of Sept. 11, 2001: “By accepting the beguiling proposition that all perspectives are equal, we left Western civilization, the God of light and light itself, undefended.” Brown’s supporters are going all out to counter the likelihood of a continued and vigorous attack from the left. “We are right now working to inform advocates on our side about Justice Brown’s credentials and urging them to vigorously support the nomination,” says Clint Bolick, the Phoenix-based vice president of the Institute for Justice. Liberals reacted to Brown’s nomination swiftly and harshly, reminiscent of the response to Estrada. One month after Brown was nominated, People for the American Way and the NAACP issued a 39-page report calling Brown “the far right’s dream judge” and accusing her of being hostile to constitutional rights and failing to follow established precedent. Titled “Loose Cannon,” the report ripped many of Brown’s rulings and dissents case by case. Washington-based NARAL Pro-Choice America, meanwhile, issued a statement pointing out that Brown originally was found not qualified for the California Supreme Court and calling her a “troubling addition” to the federal courts. Last month, the American Bar Association gave Brown a tepid “qualified/not qualified” rating. By contrast, Estrada had received a unanimous rating of “well qualified.” One online journal, The Black Commentator, went so far as to run an unflattering cartoon of Brown as Supreme Court Justice Clarence Thomas “in a fright wig.” The California Association of Black Lawyers echoed that theme in opposing Brown’s nomination in its most recent in-house journal. “As one of our founding members and past president of the National Bar Association, Robert L. Harris, so eloquently stated, ‘We should always remember that a “White” Justice Stevens, for example, is a thousand times better for Black America than a “Black” Justice Clarence Thomas,’ ” an editorial stated. Robert Alt, a fellow in constitutional studies and jurisprudence at the conservative John M. Ashbrook Center for Public Affairs in Ashland, Ohio, says liberals quickly targeted Brown because she appears to be a credible candidate for the Supreme Court. It’s often said that the D.C. Circuit serves as a training ground for the nation’s highest court. Alt calls the comparisons of Brown and Justice Thomas “subtle racism” that doesn’t surprise him, especially since liberals dubbed Estrada — who gave up trying to get on the D.C. Circuit after facing two years of opposition capped by an unbreakable filibuster — the “Hispanic Thomas.” “Those who break from what’s seen as the traditional liberal line in the African-American community,” he says, “tend to have a more difficult time.” Opponents say Brown’s race has nothing to do with their stance. It’s just her ideology, they say. “Brown is so far out of the legal mainstream on issues like the right to privacy,” says David Seldin, spokesman for NARAL Pro-Choice America, “as to raise serious concerns about her ability to judge impartially on a tremendously powerful court.” Ralph Neas, president of People for the American Way, puts it in stronger language. “She embraces the extremism of Thomas and [Justice Antonin] Scalia,” he says, “as well as the abrasiveness and lack of judicial temperament.” But one Brown defender, Santa Clara University School of Law professor Gerald Uelmen, says that’s just not true. Brown’s a libertarian, he argues, not an extremist. “I admire her wit, her courage, and her independence,” he says. “Those are qualities that we need to look for in judicial appointments, and I wish we focused the process more on personal qualities than on labels.” Opponents, Uelmen says, should look closer at the two rulings for which Brown is often criticized — one in which she dissented when the majority threw out a parental-consent abortion law and another in which she nixed a city’s minority hiring plan for subcontractors, saying it ran afoul of the state ban on affirmative action programs. In both cases, he says, Brown voted with now-deceased, and famously liberal, Justice Stanley Mosk. Alt, meanwhile, says Brown’s dissent in the parental-consent case doesn’t mean she’d necessarily vote to overturn Roe v. Wade. “It’s entirely consistent to say consent is appropriate, but Roe is the law of the land,” he says. ‘AN AMAZING STORY’ Alt also says Brown’s life story — going from sharecropper’s daughter in the Deep South to the California Supreme Court — will work to her advantage. “It’s an amazing story that appeals to the electorate,” he says. “I think her story alone will actually be a motivating factor.” Though Brown’s friends and supporters say it’s not in her nature to lobby on her own behalf, they believe it would be a wise move. “It’s very difficult to meet Janice Brown and not be impressed,” Bolick says. But most conservatives, such as Alt and Claeys, expect Democratic senators to dig up anything — controversial rulings, old speeches, even a Brown friend’s comment that she reaches decisions “in prayer and quiet study of the Bible” — to discredit the justice. “You really are in a period of trench warfare,” Alt says, “an anything-goes style of blocking someone from the bench.” Longtime friend Merksamer agrees, and says he expects the justice to encounter an extremely hostile environment. And unlike at her 1996 California Supreme Court confirmation hearing — where Brown told a friendly panel that she had decided to “sit down and shut up” rather than rebut criticisms from the State Bar’s Judicial Nominees Evaluation Commission — Brown will have to speak up and defend herself. “It’s a confirmation hearing, and they are entitled to ask questions — even outrageous ones,” says Merksamer, who has close ties to Republicans. “D.C. has become highly politicized and the judicial process has become highly partisan. I would expect the worst.” But he and longtime Brown friend Arthur Scotland, presiding justice of Sacramento’s Third District Court of Appeal, say they are confident Brown will field all questions with aplomb and “with dignity” Scotland says. “I don’t believe she’s going to be bowled over,” Merksamer says. “She will simply express herself honestly and attempt to answer the questions posed to her. That will be her style. “She lived through the segregated South,” he adds. “She ought to be able to handle a bunch of Caucasian senators.” Even Brown’s critics agree. “I doubt we will see a manifestation of her acerbic tongue at the confirmation hearings,” says University of Southern California Law School Professor Erwin Chemerinsky. “I think she knows that would just feed into the criticisms of those who oppose her.” There’s also the question of the ABA’s rating. “People will take special note,” says Aron of the Alliance for Justice, “of the fact that a marginally qualified candidate is up for nomination to a court that many consider to be the crown jewel of the federal system.” Santa Clara’s Uelmen, however, says a poor ABA rating should be no problem. “She’s weathered that before,” he says. “The commission here in California ranked her unqualified and, frankly, I think that ranking turned out to be an embarrassment to the commission. She’s put that behind her fast.” Some question the validity of the ABA rating, saying it had to be the result of liberal bias against Brown’s ideology and noting that the Bush administration doesn’t follow the long-held practice of vetting its nominees with the ABA before announcing them. “The notion that a justice of the most significant state Supreme Court in the country would be nothing less than exceptionally qualified for a position on the D.C. Circuit is ludicrous,” Bolick says. “It’s an insult to the entire California Supreme Court.” While expecting Brown to be put through the wringer, supporters — even some detractors — bemoan the politicization of the process and worry that “payback politics” will come back to haunt the federal bench. “My fear is that the process is going to have a very severe effect on the willingness of potentially controversial nominees to step up to the plate,” Uelmen says. “So we’re going to end up with a judiciary of anonymity and non-entity.” Mike McKee is a staff writer with The Recorder, the American Lawyer Media newspaper in San Francisco, where this article first appeared.

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