Harriet Out, Janice In?

This column was written by Simon Maxwell Apter.

With Michael Jordan still on the table in the 1984 NBA draft, the Portland Trail Blazers used their first-round pick on Sam Bowie, a 7-foot-1 All-American string bean from Kentucky. Bowie, a walking injury, became a punch line for generations of NBA fans, missing hundreds of games while Air Jordan slowly ascended to greatest-of-all-time status. "We needed a center," has been the championship-less team's mantra ever since.

Now, with Harriet Miers having withdrawn herself as nominee to the Supreme Court, President Bush gets what the Blazers (and their fans) have craved for more than two decades: a second chance. The obvious thing for him to do, it seems, is to find a John Roberts–esque nominee — obviously conservative, obviously qualified, and not obviously controversial. Federal appeals court judge Michael Luttig comes to mind.

But what if Bush doesn't do the obvious? There's already a sense — indeed, it was being whispered around town before Miers officially withdrew — that conservatives will be pushing for the president to try, try again with Janice Rogers Brown — a hope GOP Senator George Allen of Virginia expressed to Tim Russert on Meet the Press this past weekend.

A Bush nomination of Brown, a staunch conservative ideologue, would prove to be about as pleasant as a shot of pancreatic bile. Brown, of course, eked her way onto the court of appeals through an 11th-hour compromise negotiated by the Senate's so-called Gang of 14, which gave GOP leadership a no-filibuster guarantee for Brown and a handful of other controversial judicial nominees.

A former associate justice of the California Supreme Court, Brown was confirmed to the D.C. bench by the Senate last spring in a 57-43 vote. Every Senate Democrat except one — Nebraska's Ben Nelson — voted against her.
During the Brown nomination brouhaha, The Washington Post called her "one of the most unapologetically ideological nominees of either party in many years," and Hilary Shelton, director of the NAACP's Washington bureau, told The Black Commentator that Brown (who is black) "has a record of hostility to fundamental civil and constitutional rights principles, and she is committed to using her power as a judge to twist the law in ways that undermine those principles."

While serving in Sacramento, Brown authored, often single-handedly, dissenting opinions — and, according to colleagues, unprofessionally acerbic ones — that undermined personal privacy and delivered speeches lambasting FDR's New Deal as America's "socialist revolution." In October 2003, People For the American Way pegged Rogers as further right than both Antonin Scalia and Clarence Thomas and, in its report co-authored by the NAACP entitled "Loose Cannon," issued an acronym-laden laundry list of organizations that opposed the nomination, including NARAL, NOW, the NAACP, and the AFL-CIO.