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Jewish World Review June 27, 2003 / 27 Sivan, 5763

John H. Fund

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The California jurist who may replace Justice O'Connor | Only a handful of people know if a Supreme Court vacancy will be announced later today. The guessing in Washington is that Chief Justice William Rehnquist is now less likely to retire, given the White House's strongly expressed view that it doesn't want a vacancy. But Justice Sandra Day O'Connor marches to her own drummer, and recent events have led several court observers to speculate she may step down this week.

Justice O'Connor has previously expressed a desire to return to Arizona with her husband, who is in poor health. While she has said she has no plans to retire, she has clearly hedged in answering such questions. A few weeks ago she published a book of memoirs that could be seen as a swan song for her judicial career. On Monday the court released a landmark opinion she wrote upholding the racial diversity as a "compelling state interest" that justifies some use of racial preferences in college admissions. What better time to leave the bench then when basking in the praise of the Washington establishment?

A likely candidate to replace Justice O'Connor would be Alberto Gonzales, the 47-year-old White House counsel. President Bush has genuine affection for Mr. Gonzales, whom he appointed in 1999 to the Texas Supreme Court, where Mr. Gonzales gave few signals as to his underlying judicial philosophy. Mr. Bush prizes Mr. Gonzales's loyalty, and appointing the first Hispanic to the Supreme Court could help win votes in a crucial bloc. But the bland Mr. Gonzales has many skeptics in the conservative movement. They recall that in 1990, Mr. Bush's father appointed a largely unknown David Souter to the Supreme Court. John Sununu, the elder Mr. Bush's White House chief of staff, assured conservatives Justice Souter would be a "home run." He turned out instead to be one of the most liberal justices on the court. Many fear Mr. Gonzales is another Souter, and with the court divided 5-4 on racial preferences and many other crucial issues, the stakes are high with any nominee.

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If conservative skepticism about Mr. Gonzales prompts Mr. Bush to turn elsewhere, he has several choices. Judges J. Harvie Wilkinson and J. Michael Luttig of the Fourth U.S. Circuit Court of Appeals have excellent résumés and strong conservative records. Emilio Garza and Edith Jones, both judges on the Fifth Circuit, have strong champions within the conservative Federalist Society. But my view is that should Mr. Gonzales not be the nominee for any Supreme Court vacancy, the frontrunner would be Justice Janice Rogers Brown of the California Supreme Court.

Justice Brown, the daughter of a Alabama sharecropper, is a respected jurist with a compelling life story. Born in 1949, she arrived in California as a child and worked her way through college at Cal State Sacramento and law school at UCLA. She went to work in the state attorney general's office, and in 1991 Gov. Pete Wilson tapped her as his legal-affairs adviser. In 1994 Mr. Wilson appointed her to a state appeals court; two years later he elevated her to the state's highest court.

While on the court she has not shied away from controversy. She has said some of her colleagues have "an overactive lawmaking gland" that compels them to second-guess legislators. A clear expression of her frustration with judicial activists came in 1997, when she wrote a dissent in a case where the court majority struck down a state law stipulating that minors had to obtain parental consent for an abortion. "This case is an excellent example of the folly of courts in their role of philosopher kings," she concluded.

Her most controversial legal writing will surely be her opinion in a 2000 case that struck down a minority contracting program in San Jose. She found that it ran afoul of Proposition 209, the 1996 state initiative approved that abolished racial preferences by state and local governments. Justice Brown described preferences as an "entitlement based on group representation" and said they have had pernicious effects on society. Her opinion led some liberals to tag her as "a female Clarence Thomas."

But she also has a civil-libertarian streak. Last year the California Supreme Court affirmed the conviction of a black man who had been stopped while riding his bicycle the wrong way on a one-way street. Police searched him and found methamphetamine, and he was sentenced to nearly three years in prison. Justice Brown was a lone dissenter from that opinion, arguing that the circumstances of the arrest could be seen as racial profiling.

Douglas Kmiec, a former Reagan administration official who is now dean of the law school at Washington's Catholic University, is a close friend of Justice Brown. He believes that she has both the intellectual gifts and the grit to win a bruising confirmation battle and make a lasting impression on the Supreme Court. He also believes that her Christian faith will help her connect with millions of ordinary Americans. Last month, Justice Brown gave the commencement address to Mr. Kmiec's graduating law students. She chastised philosophers for trying to shape society "as if G-d did not exist" and frequently made reference to religious and patriotic themes.

Janice Rogers Brown sounds like the kind of nominee that a lot of Americans could come to like and admire. But she also is someone who may stir up a whirlwind of opposition from liberal senators. From what I know of her, senators who tried such strong-arm tactics would come to regret it. Says California businessman Ward Connerly, who led the campaign for Proposition 209: "No one who knows her doesn't believe she would come out on top and leave her critics in the dust."

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06/02/03: Clinton the Hoover: Bill, Hillary and the Dems' political vacuum
05/27/03: Nerd Nirvana: Students are to the right of the faculty even at the U of Chicago
05/16/03: GOPers gain in the land of Humphrey and Mondale
04/28/03: With the war won, it's time for Bush to master the Senate
04/04/03: Is "diversity" on campus even a goal worth pursuing?
03/05/03: Sunday morning with the BBC
02/28/03: Shut Up, They Explained: If you can censor this, thank a teacher
02/21/03: Unmitigated Gaul: Saddam isn't the only dictator with whom Jacques Chirac is cozy
02/18/03: Growing number of black officials breaking ranks by calling for a more honest approach to race relations
01/31/03: Half and Half: Republicans have achieved parity among American voters
11/11/02: Sobering Thoughts: The GOP's cup runneth over? No, it's half empty
10/31/02: Blue Gray: California's governor answers a Nobel Prize winner with obscenities
10/14/02: Bad Hair Day: Did Montana Dems exploit antigay prejudice?
10/11/02: The kill-everything senate
09/30/02: Schroeder did what it took to win--but at what cost to Germany?
08/22/02: Buh-Bye Bob, So Long Cynthia : No amount of shouting could've saved Barr or McKinney
07/29/02: GOP: Get Over Panic --- Dems are vulnerable on corporate scandals, too
07/17/02: Not Just an Average Joe: A black GOPer may give Rep. Eliot Engel a run for his money
07/15/02: The McCain Mutiny-II
07/01/02: Opening the Schoolhouse Door: The politicians can't stop school choice now
06/20/02: The Body' Bows Out --- American politics will be duller without Jesse Ventura
06/06/02: It's time for President Bush to stand up to California's senators
05/16/02: A Court Intrigue: Procedural funny business in a racial-preference case
05/14/02: Thin moral ice: New revelations from a skater's Stasi files recall an oppressive era
05/09/02: Newark, Zimbabwe!?
05/02/02: Will Terror Leave Us No Choice? Teachers unions try to use Sept. 11 as an excuse for bad schools
04/23/02: The New Nixon? Al Gore plots his comeback
04/16/02: 'I, Uh, I Have No Comment': A union plays dirty in opposing an antitax initiative
03/31/02: Don't Just Do Something, Stand There!: Filibusters can help the Senate GOP get things done
03/14/02: Red-Light District: It's time to draw the line on gerrymandering
02/21/02: Slippery Slope: Can Dick Riordan beat California's Democratic governor?
02/14/02: Reform School: The Shays-Meehan incumbency protection act
02/07/02: Arizona Highway Robbery: Politicians make a grab for campaign cash
01/31/02: Disfranchise Lassie: Even dogs can register to vote. We need election reform with teeth
01/17/02: Dr. King's Greedy Relations: Cashing in on a national hero's legacy
01/10/02: Oil of Vitriol
01/04/02: The little engine that couldn't--and the senators who don't want it to
12/24/01: E-mail and low-cost computers could be conduits for a learning revolution
12/13/01: How Gore could have really won
12/07/01: Let our students keep their cell phones
12/04/01: Why the White House gave the RNC chairman the boot
11/12/01: A Winsome Politician: She won an election in a majority-black district--and she's a Republican
11/01/01: Bush Avoids Politics at His Peril
10/30/01: Cocked Pit: Armed pilots would mean polite skies
10/24/01: Chicken Pox: Hardly anyone has anthrax, but almost everyone has anthrax anxiety
10/11/01: Will Rush Hear Again? New technology may make it possible
10/04/01: Three Kinds of pols
08/24/01: Lauch Out: Who'll replace Jesse Helms?
08/08/01: Tome Alone: Clinton's book will probably end up on the remainder table
08/03/01: Of grubbing and grabbing: Corporation$ and local government$ perfect "public use"
07/31/01: Affairs of State: The Condit case isn't just about adultery. It's about public trust and national security
07/14/01: The First Amendment survives, and everyone has someone to blame for the failure of campaign reform
07/12/01: He's Still Bread: Despite what you've heard, Gary Condit isn't toast --- yet
07/12/01: Passing Lane: Left-wing attacks help boost John Stossel's and Brit Hume's audiences
06/25/01: Man vs. Machine: New Jersey's GOP establishment is doing everything it can to stop Bret Schundler
06/15/01: A Schundler Surprise? Don't count out "the Jack Kemp of New Jersey"
06/06/01: Memo to conservatives: Ignore McCain and maybe he'll go away
05/29/01: Integrity in Politics? Hardly. Jim Jeffords is no Wayne Morse
05/22/01: Davis' answer to California's energy crisis? Hire a couple of Clinton-Gore hatchet men
05/07/01: Prematurely declaring a winner wasn't the networks' worst sin in Florida
04/23/01: How to fix the electoral process --- REALLY!
04/11/01: A conservative hero may mount a California comeback
03/30/01: Can the GOP capture the nation's most closely balanced district?
03/09/01: Terminated
03/06/01: Leave well enough alone
02/22/01: Forgetting our heroes
02/15/01: In 1978 Clinton got a close look at the dangers of selling forgiveness
02/12/01: Clinton owes the country an explanation --- and an appology
02/06/01: How Ronald Reagan changed America
01/16/01: Why block Ashcroft? To demoralize the GOP's most loyal voters
01/15/01: Remembering John Schmitz, a cheerful extremist
12/29/00: Why are all Dems libs pickin' on me?
Dubya's 48% mandate is different than Ford's
12/13/00: Gore would have lost any recount that passed constitutional muster
11/13/00: The People Have Spoken: Will Gore listen?
10/25/00: She's really a Dodger
09/28/00: Locking up domestic oil?
09/25/00: Hillary gives new meaning to a "woman with a past"
09/21/00: Ignore the Polls. The Campaign Isn't Over Yet

©2001, John H. Fund