June 8, 2005
By Jim Puzzanghera
Knight Ridder Newspapers
Janice Rogers Brown - the daughter of an Alabama sharecropper who put herself through college as a single mother and rose to become the first black woman on the California Supreme Court - added another accomplishment Wednesday when the U.S. Senate confirmed her appointment to a powerful federal appeals court.
"Justice Brown's life is an inspiring story of the American dream," said Senate Majority Leader Bill Frist, R-Tenn. "Thanks to hard work and persistence and a strong intellect, Justice Brown has risen to the top of the legal profession."
It might not be the last stop in Brown's controversial career, one that led President Bush to nominate her in 2003 to a court widely viewed as the nation's second-most powerful and sparked Democrats, including both California senators, to furiously fight her nomination right up until Wednesday's largely party-line, 56-43 vote.
Brown, 56, now could be on a direct path to the pinnacle of her field: the U.S. Supreme Court.
"It certainly is a possibility," said Carl Tobias, a law professor at the University of Richmond and an expert on the judicial selection process.
He noted that three of the nine current U.S. Supreme Court Justices - Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg - sat on the D.C. circuit court when they were nominated to the nation's highest court.
If not for the delay in her confirmation - blocked by Democrats with the threat of the filibuster blocking tactic until a bipartisan deal on judges was struck last month - Brown probably "would be on a short list" for the next Supreme Court nomination, said Sen. Jeff Sessions, R-Ala.
Brown most likely would not be considered for a court vacancy should Chief Justice William Rehnquist step down at the end of the court's latest session on June 30, as many expect because he is suffering from throat cancer.
But with her strong backing from conservative interest groups, she could be on a short list for Bush's next appointment, which some analysts predict could come within a year as seven other justices are at least 65 years old and two - John Paul Stevens and Sandra Day O'Connor - have passed their 75th birthdays.
"Certainly she's got the qualification and the intellect, everything it takes to be a candidate for the Supreme Court," said Wendy Long, counsel for the Judicial Confirmation Network, a group that has advocated for Bush's nominees. "Usually one is on the appeals court for a little bit longer before that's considered or talked about."
But O'Connor was nominated by President Reagan directly from an Arizona state court. Thomas was nominated to the Supreme Court within 16 months of being confirmed to the D.C. circuit court, while David Souter, a former New Hampshire Supreme Court justice, spent just five months on the First Circuit Court of Appeals in Boston before President George H.W. Bush nominated him to the high court in 1990.
The contentiousness of Brown's appellate court confirmation battle, however, makes her an unlikely Supreme Court choice, said David O'Brien, a University of Virginia political scientist and author of "Storm Center: The Supreme Court in American Politics."
"My own view is she's so controversial that she'll probably spend the rest of her career on the D.C. circuit," he said.
Democrats hammered Brown for comments in speeches and court opinions that they said indicated she was hostile to the rights of minorities, the poor and government programs in general.
Sen. Orrin Hatch, R-Utah, said Brown's record and statements were distorted and that "some have been against her primarily because she's a conservative African-American woman."
Brown's race was an undercurrent throughout the confirmation battle and adds a historic factor to a potential U.S. Supreme Court appointment: no black woman has ever served on that court.
But Sen. Barbara Boxer, D-Calif., said that she hoped the trouble Brown had getting confirmed to the D.C. court sent a message.
"I would think one of the good things we did in this debate by spelling out her outrageous record is to make the case that this is not one that ought to be sent up to the Supreme Court," Boxer said.
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