Interesting post from Orin Kerr at the Volokh Conspiracy on the chances of Janice Rogers Brown getting Justice O’Connor’s seat. Kerr doesn’t think so:
While Brown has a reputation as an “extreme conservative,” it’s more accurate to say that she is a hard core libertarian. A hard core libertarian is not likely to vote in a consistently conservative way, which I think makes it less likely that Bush will nominate her to the Supreme Court.
For example, I think Brown would be more liberal than any sitting Supreme Court justice on questions of criminal law and procedure, a subject that may carry over to the war on terror and the scope of executive power. Criminal law cases occupy maybe 25% of the Supreme Court’s docket, and my quick review of a few Brown opinions suggests that Brown would side on the “liberal” side (generally speaking, more pro-defendant than the norm) in such cases. The handful of Brown cases I read in the area of criminal law have a William O. Douglas flavor to them; they’re passionate about the meaning and importance of the Bill of Rights, and very critical of what she sees as the modern Supreme Court’s watering down of its protections.
I’d like to see a libertarian on the Supreme Court. Perhaps they’d pay attention to the 10th Amendment a little more.