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Florida Gov. Jeb Bush’s process for choosing judges is facing new scrutiny following his recent appointment of a little-known prosecutor who formerly headed the Christian Legal Society, and in the wake of reports that his chief legal counsel is asking judicial candidates what many consider an ideological litmus test question. The appointment of Cheryl Alem�n to a Broward County, Fla., Circuit Court judgeship in December — and her extensive religious comments at her judicial robing last week — surprised many Broward County judges and lawyers, her colleagues in the Office of Statewide Prosecution, and some state legislators. But lawyers who have worked with her, including a Democrat who was a finalist recommended by Florida’s 17th Circuit Judicial Nominating Commission (JNC) for the same post, had high praise for her legal ability and temperament. Broward County Circuit Chief Judge Dale Ross has not yet given a permanent assignment to Alem�n, who was elevated to the bench Jan. 14. Instead, he has rotated her through drug court and a strike force post. Now she’s being moved to dependency court. Her ultimate preference is for criminal court: “I’m at home in criminal court,” she says. Those who worked with the 43-year-old lawyer say they didn’t know she had applied for the judgeship at the last minute. Court insiders and many judges had never heard of Alem�n, who’s lived in Florida for only six years and had never applied for a judgeship before. “It’s very rare for someone to get picked the first time he or she ever applies,” says Jim Cobb, deputy chief assistant for South Florida in the Office of Statewide Prosecution. Alem�n beat out several prosecutors who had been finalists for judgeships a number of times before, including Cindy Imperato and Oscar Gelpi. “Everyone here was surprised,” adds Cobb, who also had applied for the judgeship. “I’ve never heard of [Alem�n] and I’m a past president of the Broward Bar Association and the Broward County Trial Lawyers Association and formerly on the board of governors of the Florida Bar,” says state Sen. Walter “Skip” Campbell, D-Tamarac. “That should say something.” But others say it’s not surprising that she was selected by Bush and his chief legal counsel, Charles Canady, after her name appeared on the list of finalists recommended by the JNC. Conservative, Republican and such a strong Christian conservative that she served as president of the Broward County chapter of the highly ideological Christian Legal Society in 2000, Alem�n is “exactly what the administration wanted,” says Cobb, adding that she’s also a highly qualified trial attorney. Canady also is considered a Christian conservative. A former Florida congressman from Lakeland who was one of Bill Clinton’s chief inquisitors during the impeachment process, Canady sponsored anti-abortion legislation in Congress and successfully pushed a bill limiting how cities can use zoning laws to restrict where houses of worship can be located. TESTING ABORTION VIEWS? Beyond the appointment of a little-known judicial candidate with Christian Right connections, some observers were extremely troubled to learn that Canady has asked judicial applicants what could be considered an ideological litmus test question. Two judicial applicants whom Canady interviewed told the Daily Business Review that he asked them questions about the Ninth Amendment to the U.S. Constitution. The Ninth Amendment states: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” It’s widely believed to be one of the bases for the doctrine of the right to privacy and, in turn, for court decisions supporting the right of access to abortion and contraceptives and striking down bans on gay sex. Oscar Gelpi, another prosecutor with the Office of Statewide Prosecution in Broward County, was one of the finalists interviewed by Canady for the judgeship eventually won by Alem�n. “I was asked whether Congress should codify the Ninth Amendment,” Gelpi says. Another recent finalist candidate for a circuit court judgeship, who did not want to be identified, also reports that Canady asked about the Ninth Amendment. Alem�n says she was not asked about the Ninth Amendment. “That’s a thinly veiled litmus test,” says James Green, a West Palm Beach lawyer and past president of the Florida chapter of the American Civil Liberties Union. “It calls into question nominees’ attitudes about judges creating rights not specifically enumerated in the Constitution. It has to do with separation of powers and abortion rights.” Bob Jarvis, a professor at Nova Southeastern University’s law school and a constitutional law scholar, agrees. “That’s a litmus test,” he says. “The Ninth Amendment has a very specific connotation for lawyers.” Elliot Mincberg, legal director of People for the American Way, a liberal Washington, D.C.-based group that monitors judicial issues, says it’s legitimate to ask judicial candidates broad questions about their judicial philosophy, including questions about a candidate’s general views about the Ninth Amendment. He says, however, that other factors would make this troublesome, for instance, whether a wrong answer on a single question would disqualify a candidate. Mincberg argues that asking a candidate whether Congress should have taken a particular action, as Canady allegedly did, is inappropriate. He also questions why a state judicial candidate would be asked a federal constitutional question, since that isn’t a state judge’s routine business. There’s another indication of how candidates perceive the Bush administration’s judicial selection process. Several court and political insiders say Canady has asked judicial applicants what one person they would most like to meet. Before they could answer, he told them, “Don’t say Jesus, because everyone is saying that.” GOVERNOR’S OFFICE DENIAL Asked by the Daily Business Review for comment about the Ninth Amendment question, Canady answered by e-mail through Elizabeth Hirst, the governor’s spokeswoman. “There is no litmus test question,” Hirst insisted. As to the Ninth Amendment issue, she said, “The interviews vary, based on candidate’s experience and interest. At times constitutional amendment discussions may come up.” Hirst lists Bush’s top criteria for choosing judges as integrity and high ethical standards, legal knowledge and ability, professional experience, judicial temperament, diligence, financial responsibility and public service. It is not unusual for first-time applicants to be appointed, she says. Canady was aware of Alem�n’s association with the Christian Legal Society because she listed it on her judicial application, Hirst said. Canady is not a member of the organization and had never met Alem�n before their meeting. When told by the Daily Business Review that some judicial candidates had been asked questions about the Ninth Amendment, Sen. Campbell said he was so concerned that he planned to call Canady immediately to discuss the matter. The Broward County Democrat says Alem�n’s appointment has been the talk of Tallahassee and that many suspect her candidacy was pushed by Christian conservative groups. “What people up here are saying is, ‘This is just the beginning.’ “ But for many Democrats, the real start of Bush’s conservative makeover of the state judiciary began last spring. That’s when the GOP-dominated Legislature handed the governor the power to appoint all members of the state’s 26 judicial nominating commissions, stripping the Florida Bar of its power to appoint three members of each nine-person panel. Florida Bar President-elect Tod Aronovitz said the Bar had no immediate comment on the Bush administration’s judicial selection process. DEEPLY RELIGIOUS At her judicial robing ceremony Jan. 25 at the Broward County Courthouse in Fort Lauderdale, Fla., Alem�n and her husband, Omar Alem�n, seemed well aware of the curiosity about her. Her husband, a Drug Enforcement Administration agent, introduced her by joking, “I’m going to answer the question everyone’s been asking: ‘Who is Cheryl Alem�n?’ “ It soon became clear to the judges and legal insiders in attendance that Alem�n explicitly identifies herself as a Christian. After her parents put the black robe on her, she spoke about how God had called her to be a judge a few months ago. “I’d like to thank the Lord. He’s been with me as my wonderful counselor and my best friend,” she said. “And I’d like to thank everyone who prayed for me and with me.” Courthouse insiders say they had never heard a new judge speak about his or her religious beliefs at a robing, and they were buzzing about it for days. In an interview with the Daily Business Review later, Alem�n said she was raised in Lansing, Mich., by a businessman father and schoolteacher mother. One brother is now a civil lawyer in Michigan and another is a dentist there. She says she “grew up in the church,” and attended Wheaton College, a suburban Chicago college nationally known for its association with evangelical Christianity. During the interview, Alem�n explained the importance of frequent prayer in her life, then asked, “Are you a Christian?” Told no, she then asked, “Are you a Jew?” She then asked if this reporter prayed. Alem�n received her law degree from the University of Colorado at Boulder in 1983 and served as a deputy district attorney for the 1st and 17th judicial districts in Colorado from 1984 to 1995. She met her Cuban-born husband while taking a law enforcement class he was teaching. They married and she followed him to South Florida, settling in Cooper City in 1995. She went to work for the Office of Statewide Prosecution, which prosecutes large racketeering cases throughout the state under the auspices of the Florida attorney general. They have no children. HIGHLY QUALIFIED Alem�n’s former boss and her colleagues at the Office of Statewide Prosecution speak highly of her. They describe her as a seasoned trial lawyer with 100 jury trials under her belt — more than several other prosecutors combined. They also say she’s intelligent and dedicated, and gets along with everyone. “I think she’s extremely qualified,” said Lisa Porter, the office’s chief assistant for South Florida and Alem�n’s former boss. “She’s very attentive to the law. She’s tried death penalty cases, all kinds of cases. In her heart, she’s interested in a just outcome. If she becomes convinced the evidence is not there, she’ll drop the case.” Both Gelpi and Cobb, who lost out to her for the judgeship, say they have no hard feelings. “If it was anyone else but her, maybe I would,” says Gelpi with a laugh. “But she’s wonderful. I’m happy for her.” One of her biggest legal victories came a couple years ago. She and Cobb handled the longest trial the office had ever seen — a complex, seven-week proceeding in Palm Beach Circuit Court in which two defendants were tried for defrauding dozens of people of their life savings in a vending machine boiler room scheme. Alem�n, as lead attorney, and Cobb won the case, securing a sentence of 10 years for the lead defendants. Alem�n’s co-workers knew she was a devout Christian and had served as president of the Christian Legal Society; she took several prosecutors with her to the society’s luncheons. CLS is a national organization of lawyers, judges and law professors that promotes government “neutrality” toward religion, which many legal experts interpret to mean a weakening of the separation between church and state. The group also advocates the sanctity of human life from conception through death. The organization has an extensive legislative and litigation agenda; it filed a lawsuit to stop the Clinton administration from funding embryonic stem cell research. CLS also backs government vouchers for parents who send their children to private and parochial schools, along with a “health care right of conscience act” that would allow health care providers not to offer services such as abortion, contraceptives and assisted suicide. NEVER PROSELYTIZED Alem�n never proselytized at work and never refused a case based on conflict with her religious beliefs, her co-workers say. They and some other observers say there is no reason to believe she will be unable to separate her religious beliefs and judicial duties. “Just because you have strong feelings does not mean you will allow them to affect your decisions on the bench,” says Nova Southeastern’s Jarvis. “You can practice Christianity or Judaism or Satanism. The question is, do you have a judicial temperament, a quality of mercy?” But others question whether Alem�n can separate her beliefs from her judicial job, where she could face issues about church and state conflicts, school vouchers, the death penalty and assisted suicide. Circuit judges can be asked to consider federal constitutional questions. “If [Alem�n's] personal judicial philosophy is consistent with the Christian Legal Society, that would be troubling, because the result would be to interpret many important [issues] in ways that could damage people’s rights and liberties,” says Mincberg of People for the American Way. Alem�n, who attends both the Sheridan Hills Baptist Church in Hollywood, Fla., and the Calvary Baptist Church in Fort Lauderdale, says “Being Christian is the single most important thing in my life. It affects every area of my life.” Harris Meyer provided additional reporting for this article.

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