Harriet Out, Janice In?

This column was written by Simon Maxwell Apter.

Now, with Harriet Miers having withdrawn herself as nominee to the Supreme Court, President Bush gets what the Blazers (and their fans) have craved for more than two decades: a second chance.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.

Scary job-approval numbers and looming indictments of key White House figures ensure that President Bush will face an entirely different political climate now should he proceed with a nomination of Brown to the Supreme Court than he did when he originally tapped her for the court of appeals two years ago. The climate is even radically different from when she was finally confirmed in June. The Gang of 14 agreement, hastily created in May by senators from both sides of the aisle, pledged to avoid judicial filibusters except in "extraordinary circumstances" — a vague condition that now has Washington buzzing about what, if anything, constitutes an extraordinary circumstance.

Behind the Gang of 14's swath of recent confirmations, though, may lie the answer to what — or more importantly whom — will be seen by Democratic senators as an extraordinary circumstance these days. While Brown squeaked by with one lonely Democratic vote, fellow conservative nominee to the D.C. Circuit — and alleged perjurer — Thomas B. Griffith was confirmed in a 73-24 vote. Similarly, previously blocked nominees Richard A. Griffin and David W. McKeague found themselves proudly confirmed to the bench of the Sixth Circuit in Cincinnati by votes of 95-0 and 96-0, respectively. And, perhaps most tellingly, John G. Roberts Jr. was confirmed as Chief Justice of the Supreme Court by a 78-22 margin; fully half of the Senate's Democrats voiced yeas for him.

With the White House on such a quake-prone foundation these days, and with a seat on the highest court at stake, Senate Democrats may become less scrupulous in their determination of which nominees are or aren't "extraordinary." Clearly, Griffith, Griffin, et al. were not. Senate Democrats would seem to be solidly united against any ascension of Brown to the Supreme Court. While filibusters may not have been in fashion for the summer and autumn, a Bush nomination of Brown could certainly have them flying off the racks for the holidays.

Another probable leading choice is Attorney General Alberto Gonzales. He's the man Karl Rove wanted in the first place. But after Patrick Fitzgerald hands down his decision in the Plame case later today or tomorrow, Rove may suddenly become a little less influential. And, of course, we know that the right considers Gonzales soft on key issues. But Bush — reeling from the Miers fiasco, the 2,000th death in Iraq, and likely indictments of key personnel — may decide that he needs to name Gonzales, a Latino whom the Democrats would be unlikely to work up much opposition to.

Trail Blazers fans are still waiting for that first post-Bowie world championship; now, with incompetence clinging to all things Bush, Republicans may find themselves waiting another 20 years for a post-Miers conservative Court.

Simon Maxwell Apter is a Prospect intern.

By Simon Maxwell Apter.
Reprinted with permission from The American Prospect, 5 Broad Street, Boston, MA 02109. All rights reserved