Supreme Bank Shots

Judge Janice Rogers Brown may have one of the shortest Appellate Court tenures on record. Barely confirmed to a seat on the D.C. Circuit by the U.S. Senate last month as part of the filibuster deal, Brown’s name is showing up with some regularity on the list of potential Supreme Court nominees.
It’s a good bet she’ll get the nod. Brown is conservative and she’s an African American. That doesn’t make it hard for Liberals to object to her legal opinions but it makes it hard for Democrats in the U.S. Senate to vote against her. Brown’s nomination would also take pressure off the Bush administration – losing its edge with women voters – to keep at least two women on the court.
The public signs are good for Brown, too. Her name was floated last week by Jay Sekulow, head of the conservative American Center For Law and Justice in Atlanta. Even he admitted that Justice Sandra Day O’Conner’s resignation from the court has uh, kind of surprised everyone and that, with “reality setting in” woman judges would advance up the list of nominees. Brown’s name showed up front and center in the Wall Street Journal’s early rundown. When you consider that it’s a woman lawyer making the list, it’s looking safer and safer for Brown.

Nina Tottenburg – who clearly had planned a nice eulogy of Chief Justice Rehnquist’s career as part of her summer Supreme Court coverage – probably said it best. “The list that was so much talked about for Chief Justice is not an apt list for replacing her.” That’s probably the best explanation of why there’s been so little decent speculation about who’s going to get the nod. All the talk about Alberto Gonzalez is just that: No one likes him. So the administration is scrambling and, well, you can’t help but think after watching the tapes of interviews she’s given in the past, that retiring Justice Sandra Day O’Conner isn’t having a little bit of a giggle over that. The Justice has a wry style.
This nomination is a very tough political call for the Bush administration. Its friends and enemies are ganging up in advance so it’s going to have to fight a two-front war against conservative supporters who want one of their own and Democrats who don’t.
Actually make that three fronts. Because when you get down to it, Republican management of the U.S. Senate isn’t in very good hands, now is it? Sen. Bill Frist, probably busy making medical house calls via videotape, hasn’t been able to deliver for the White House. Moderate senators who are aligned with Sens. John McCain – who cut the filibuster deal that got Brown on the Appeals Court — and Sen. Arlen Specter will make things very difficult for a staunch conservative or a flaming liberal.
Specter will manage the nomination process. And he’s got plenty of reasons to be less than cooperative with the conservative element of the Republican party. They raked him over the coals as soon as he was re-elected to his Senate seat for being “soft” on abortion. Just yesterday, one of the movement’s leading judicial lights, unsuccessful former Supreme Court nominee Robert Bork, went on CNN and called him a liar. And now that Specter has non-Hodgkins lymphoma he is even less likely to fall in line when the White House says so. After all, what does this man have to lose?
Another problem for the Bush folks? The growing power of Sen. John McCain. McCain is no friend of the Bush administration and is – after five years as a prisoner of war in Vietnam – also not a man who scares easily. He wants to be president and only a month ago, his mother was babbling to The New Yorker that she, herself, was pro-choice. McCain’s ambition and his increasing authority in the Senate, is a dangerous combination for the Bush folks.
But back to Brown. Here’s the final asset her nomination gives the Bush folks: The Senate just voted to put her on the D.C. Circuit Court of Appeals. Yeah, it was a political deal but it was a political deal that everyone felt they could live with. What’s changed about Brown – she can’t have had time to issue any substantive decisions in her month in Washington – that she’s now unfit to serve the higher court? That’s a hard argument for Democrats to overcome.
What are Democrats like Sens. Kennedy and Boxer going to say? That Brown, a black woman, can only go so far? That being an appellate judge isn’t as important as the Supreme Court so it doesn’t matter that she was recently confirmed? That’s a box – one where the race and gender questions get nasty fast – the Republicans would love to put the Democrats in. And, given the tenor of the rhetoric I’m hearing from the self-styled “progressives,” its one into which they seem blindly happy to walk.