An Act of Faith?

Governor's selection of Christian conservative to Broward Circuit bench spurs concern about litmus test

By Julie Kay
Miami Daily Business Review

FL Judge Cheryl Alemán: "I'd like to thank the Lord.
He's been with me as my wonderful counselor
and my best friend," she said.
"And I'd like to thank everyone who
prayed for me and with me."

Gov. Jeb Bush's process for choosing judges is facing new scrutiny following his recent appointment of a little-known prosecutor who formerly headed the Christian Legal Society, and in the wake of reports that his chief legal counsel is asking judicial candidates what many consider an ideological litmus test question.

The appointment of Cheryl Alemán to a Broward Circuit judgeship in December -- and her extensive religious comments at her judicial robing last week -- surprised many Broward judges and lawyers, her colleagues in the Office of Statewide Prosecution, and some state legislators.

But lawyers who have worked with her, including a Democrat who was a finalist recommended by the 17th Circuit Judicial Nominating Commission for the same post, had high praise for her legal ability and temperament.

Broward Chief Judge Dale Ross has not yet given a permanent assignment to Alemán, who was elevated to the bench Jan. 14. Instead, he has rotated her through drug court and a strike force post. Now she's being moved to dependency court. Her ultimate preference is for criminal court: "I'm at home in criminal court," she says.

Those who worked with the 43-year-old lawyer say they didn't know she had applied for the judgeship at the last minute. Court insiders and many judges had never heard of Alemán, who's lived in Florida for only six years and had never applied for a judgeship before.

"It's very rare for someone to get picked the first time he or she ever applies," says Jim Cobb, deputy chief assistant for South Florida in the Office of Statewide Prosecution. Alemán beat out several prosecutors who had been finalists for judgeships a number of times before, including Cindy Imperato and Oscar Gelpi. "Everyone here was surprised," adds Cobb, who also had applied for the judgeship.

"I've never heard of [Alemán] and I'm a past president of the Broward Bar Association and the Broward County Trial Lawyers Association and formerly on the board of governors of the Florida Bar," says state Sen. Walter "Skip" Campbell, D-Tamarac. "That should say something."

But others say it's not surprising that she was selected by Bush and his chief legal counsel, Charles Canady, after her name appeared on the list of finalists recommended by the JNC. Conservative, Republican and such a strong Christian conservative that she served as president of the Broward chapter of the highly ideological Christian Legal Society in 2000, Alemán is "exactly what the administration wanted," says Cobb, adding that she's also a highly qualified trial attorney.

Canady also is considered a Christian conservative. A former Florida congressman from Lakeland who was one of Bill Clinton's chief inquisitors during the impeachment process, Canady sponsored anti-abortion legislation in Congress and successfully pushed a bill limiting how cities can use zoning laws to restrict where houses of worship can be located.

Testing Abortion Views?

Beyond the appointment of a little-known judicial candidate with Christian right connections, some observers were extremely troubled to learn that Canady has asked judicial applicants what could be considered an ideological litmus test question. Two judicial applicants whom Canady interviewed told the Daily Business Review that he asked them questions about the Ninth Amendment to the U.S. Constitution.

The Ninth Amendment states: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." It's widely believed to be one of the bases for the doctrine of the right to privacy and, in turn, for court decisions supporting the right of access to abortion and contraceptives and striking down bans on gay sex.

Oscar Gelpi, another prosecutor with the Office of Statewide Prosecution in Broward, was one of the finalists interviewed by Canady for the judgeship eventually won by Alemán. "I was asked whether Congress should codify the Ninth Amendment," Gelpi says.

Another recent finalist candidate for a circuit court judgeship, who did not want to be identified, also reports that Canady asked about the Ninth Amendment. Alemán says she was not asked about the Ninth Amendment.

"That's a thinly veiled litmus test," says James Green, a West Palm Beach lawyer and past president of the Florida chapter of the American Civil Liberties Union. "It calls into question nominees' attitudes about judges creating rights not specifically enumerated in the Constitution. It has to do with separation of powers and abortion rights."

Bob Jarvis, a professor at Nova Southeastern University's law school and a constitutional law scholar, agrees. "That's a litmus test," he says. "The Ninth Amendment has a very specific connotation for lawyers."

Elliot Mincberg, legal director of People for the American Way, a liberal Washington, D.C.-based group that monitors judicial issues, says it's legitimate to ask judicial candidates broad questions about their judicial philosophy, including questions about a candidate's general views about the Ninth Amendment. He says, however, that other factors would make this troublesome, for instance, whether a wrong answer on a single question would disqualify a candidate.

Mincberg argues that asking a candidate whether Congress should have taken a particular action, as Canady allegedly did, is inappropriate. He also questions why a state judicial candidate would be asked a federal constitutional question, since that isn't a state judge's routine business.

There's another indication of how candidates perceive the Bush administration's judicial selection process. Several court and political insiders say Canady has asked judicial applicants what one person they would most like to meet. Before they could answer, he told them, "Don't say Jesus, because everyone is saying that."

Governor's Office Denial

Asked by the Daily Business Review for comment about the Ninth Amendment question, Canady answered by e-mail through Elizabeth Hirst, the governor's spokeswoman.

"There is no litmus test question," Hirst insisted. As to the Ninth Amendment issue, she said, "The interviews vary, based on candidate's experience and interest. At times constitutional amendment discussions may come up."

Hirst lists Bush's top criteria for choosing judges as integrity and high ethical standards, legal knowledge and ability, professional experience, judicial temperament, diligence, financial responsibility and public service. It is not unusual for first-time applicants to be appointed, she says.

Canady was aware of Alemán's association with the Christian Legal Society because she listed it on her judicial application, Hirst said. Canady is not a member of the organization and had never met Alemán before their meeting.

When told by the Daily Business Review that some judicial candidates had been asked questions about the Ninth Amendment, Sen. Campbell said he was so concerned that he planned to call Canady immediately to discuss the matter.

The Broward Democrat says Alemán's appointment has been the talk of Tallahassee and that many suspect her candidacy was pushed by Christian conservative groups. "What people up here are saying is, 'This is just the beginning.' "

But for many Democrats, the real start of Bush's conservative makeover of the state judiciary began last spring. That's when the GOP-dominated Legislature handed the governor the power to appoint all members of the state's 26 judicial nominating commissions, stripping the Florida Bar of its power to appoint three members of each nine-person panel.

Florida Bar President-elect Tod Aronovitz said the Bar had no immediate comment on the Bush administration's judicial selection process.

Deeply Religious

At her judicial robing ceremony Jan. 25 at the Broward County Courthouse in Fort Lauderdale, Alemán and her husband, Omar Alemán, seemed well aware of the curiosity about her. Her husband, a Drug Enforcement Administration agent, introduced her by joking, "I'm going to answer the question everyone's been asking: 'Who is Cheryl Alemán?' "

It soon became clear to the judges and legal insiders in attendance that Alemán explicitly identifies herself as a Christian. After her parents put the black robe on her, she spoke about how God had called her to be a judge a few months ago.

"I'd like to thank the Lord. He's been with me as my wonderful counselor and my best friend," she said. "And I'd like to thank everyone who prayed for me and with me."

Courthouse insiders say they had never heard a new judge speak about his or her religious beliefs at a robing, and they were buzzing about it for days.

In an interview with the Daily Business Review later, Alemán said she was raised in Lansing, Mich., by a businessman father and schoolteacher mother. One brother is now a civil lawyer in Michigan and another is a dentist there. She says she "grew up in the church," and attended Wheaton College, a suburban Chicago college nationally known for its association with evangelical Christianity.

During the interview, Alemán explained the importance of frequent prayer in her life, then asked, "Are you a Christian?" Told no, she then asked, "Are you a Jew?" She then asked if this reporter prayed.

Alemán received her law degree from the University of Colorado at Boulder in 1983 and served as a deputy district attorney for the 1st and 17th judicial districts in Colorado from 1984 to 1995.

She met her Cuban-born husband while taking a law enforcement class he was teaching. They married and she followed him to South Florida, settling in Cooper City in 1995. She went to work for the Office of Statewide Prosecution, which prosecutes large racketeering cases throughout the state under the auspices of the Florida attorney general. They have no children.

Highly Qualified

Alemán's former boss and her colleagues at the Office of Statewide Prosecution speak highly of her. They describe her as a seasoned trial lawyer with 100 jury trials under her belt -- more than several other prosecutors combined. They also say she's intelligent and dedicated, and gets along with everyone.

"I think she's extremely qualified," said Lisa Porter, the office's chief assistant for South Florida and Alemán's former boss. "She's very attentive to the law. She's tried death penalty cases, all kinds of cases. In her heart, she's interested in a just outcome. If she becomes convinced the evidence is not there, she'll drop the case."

Both Gelpi and Cobb, who lost out to her for the judgeship, say they have no hard feelings. "If it was anyone else but her, maybe I would," says Gelpi with a laugh. "But she's wonderful. I'm happy for her."

One of her biggest legal victories came a couple years ago. She and Cobb handled the longest trial the office had ever seen -- a complex, seven-week proceeding in Palm Beach Circuit Court in which two defendants were tried for defrauding dozens of people of their life savings in a vending machine boiler room scheme. Alemán, as lead attorney, and Cobb won the case, securing a sentence of 10 years for the lead defendants.

Alemán's coworkers knew she was a devout Christian and had served as president of the Christian Legal Society; she took several prosecutors with her to the society's luncheons.

CLS is a national organization of lawyers, judges and law professors that promotes government "neutrality" toward religion, which many legal experts interpret to mean a weakening of the separation between church and state. The group also advocates the sanctity of human life from conception through death.

The organization has an extensive legislative and litigation agenda; it filed a lawsuit to stop the Clinton administration from funding embryonic stem cell research. CLS also backs government vouchers for parents who send their children to private and parochial schools, along with a "health care right of conscience act" that would allow health care providers not to offer services such as abortion, contraceptives and assisted suicide.

Never Proselytized

Alemán never proselytized at work and never refused a case based on conflict with her religious beliefs, her coworkers say. They and some other observers say there is no reason to believe she will be unable to separate her religious beliefs and judicial duties.

"Just because you have strong feelings does not mean you will allow them to affect your decisions on the bench," says Nova Southeastern's Jarvis. "You can practice Christianity or Judaism or satanism. The question is, do you have a judicial temperament, a quality of mercy?"

But others question whether Alemán can separate her beliefs from her judicial job, where she could face issues about church and state conflicts, school vouchers, the death penalty and assisted suicide. Circuit judges can be asked to consider federal constitutional questions.

"If [Alemán's] personal judicial philosophy is consistent with the Christian Legal Society, that would be troubling, because the result would be to interpret many important [issues] in ways that could damage people's rights and liberties," says Mincberg of People for the American Way.

Alemán, who attends both the Sheridan Hills Baptist Church in Hollywood and the Calvary Baptist Church in Fort Lauderdale, says "Being Christian is the single most important thing in my life. It affects every area of my life.."

Date Received: February 07, 2002

Letter to the Editor:

Coverage of Alemán bigoted

To the Editor:

Religious bigotry now passes for objective journalism at the Daily Business Review. On Feb. 7, the Review published as a news article ["An act of faith?] an op-ed piece attacking newly appointed Broward Circuit Judge Cheryl Alemán not on the merits, but because of her strong faith, membership in Christian Legal Society (CLS) and alma mater. On Feb. 19, an interviewee and fellow judicial applicant with little to gain from correcting the Review, Oscar Gelpi, denied key facts attributed to him in the article, including the allegation that the Jeb Bush administration is using the Ninth Amendment as a litmus test for judicial applicants. Undeterred, the Review placed two sentences underneath this correction, implying that Mr. Gelpi is a liar, and, then, published a scathing editorial ["Crossing the line"] referring to the Review's critics as either "careless" or "disingenuous." The evidence suggests it is the Review that is reckless.

To our knowledge, the Review has never been troubled by the association of judges with other excellent legal organizations, such as the Anti-Defamation League or NAACP. To borrow from the Review's words, the league's Web site reveals "an extensive legislative and litigation agenda" concerning some of the same issues upon which CLS focuses attention: e.g., school vouchers. CLS welcomes the league and other organizations' involvement in this great American debate and sees no reason why membership in these organizations should have any bearing on a lawyer's judicial qualifications. Neither does the Florida Supreme Court, as evidenced by its thoughtful Code of Judicial Conduct and own membership. In contrast, the definition of "invidious discrimination" or bigotry ordinarily focuses on disparate treatment based on irrelevant factors like a person's firmly held religious convictions. The press, of all American institutions, should appreciate the difference between First Amendment-protected speech and irrelevant employment criteria.

Not only has the Review's treatment of Judge Alemán proved bigoted, but also poorly researched. Beyond the facts denied by Mr. Gelpi, had the Review carefully investigated CLS nationally, it would have discovered an organization far different than the "highly ideological," "Christian right" one it invents. To the contrary, CLS has frequently riled the right by endorsing joint statements on faith in public education and appearing on important amici with the left including the League, B'nai B'rith and ALCU. CLS has never favored mandatory school prayer.

Of course, none of this is relevant to whether Ms. Alemán was the most qualified applicant for the job. On this point, the Review has yet to muster any contrary evidence. Rather, by the Review's own admission, she is considered a seasoned trial lawyer, sharp, dedicated and pleasant.

The only fault the Review finds in her is that she takes her faith seriously. So do we and, we are proud to say, so do a host of eminent jurists of all faiths who have preceded and serve with her.

Thomas J. Shea III

Editor's reply:

On March 1, the Review reported that Gov. Jeb Bush's general counsel acknowledged to state Sen. Skip Campbell that the Ninth Amendment question was indeed asked. As far as the Feb. 19th commentary by Review law editor Harris Meyer, the arguments in that piece apply to all judicial candidates who have taken public and activist leadership positions on legal and policy issues. The commentary also drew a clear distinction between holding private religious convictions on the one hand, and being a religio-political activist or discussing personal religious views at length during an official judicial function.

Date Received: March 11, 2002

I wish I had included information about this judicial appointment, above, in the recent essay, linked below, that I wrote about two other judicial appointements by Gov. Bush, as I think he has really chosen quality people (and made diverse selections, because guess what, in addition to highly qualified Asian-American and black men, there are highly qualified women in FL, too [who may even be Christian conservatives]).

The two appointments I wrote about were: an Asian-American male, and a black male, both highly qualified, as is this woman, above.

'The Jeb Bush Nobody Knows' -- Part 12: The Top 3 Reasons Alec Baldwin Visited Jeb in FL

NEW LITMUS TEST for PUBLIC SERVICE:
"ARE YOU NOW OR HAVE YOU EVER BEEN

C O N S E R V A T I V E ? "

(Or Christian, or pro-life.)

Dan

Thanks for checking it out, Dakmar. I think my essay gave a lop-sided view. Plus, Gov. Bush has made DOZENS of appointments to the bench. Not just the person mentioned here on this thread and the other two in my previous essay. :)

"I've never heard of [Alemán] and I'm a past president of the Broward Bar Association and the Broward County Trial Lawyers Association and formerly on the board of governors of the Florida Bar," says state Sen. Walter "Skip" Campbell, D-Tamarac. "That should say something."

In other words, she's not part of your liberals-only club. Too bad, "Skip."

Don't be fooled by liberal interest groups like PFAW's opposition to judges' allegedly based on their lack of resquisite temperament or inexperience in making sound rulings. No the REAL reason for the opposition to judicial nominations is their disapproval of a would be judge's CONSERVATIVE political philosophy. Fortunately in Florida the liberals are powerless and excellent conservative judges starting to reach the bench are the wave of the future. Like Cheryl Aleman. It drives liberals insane that their long overdue monopoly of the means of judicial coercion is finally coming to an end. I can't wait to see the 7 liberal dwarfs on the SCOFLAW finally replaced with honest to goodness conservative justices, and its no wonder the liberal Broward County Business Daily is deeply worried. For the Left in the Sunshine State, the rollickin' good times are over.

BTW, if you're interested, here is additional information on Governor Jeb Bush and his judicial appointments, from the State of FL's official web site:

Governor Jeb Bush's Initiatives - Judicial Appointements

And, boy, this is really a discriminatory statement and put-down if I ever heard one:

"If [Alemán's] personal judicial philosophy is consistent with the Christian Legal Society, that would be troubling, because the result would be to interpret many important [issues] in ways that could damage people's rights and liberties," says Mincberg of People for the American Way.

So, Mincberg is saying that only people who have nothing to do with this religion -- Christianity -- are capable of serving in a judicial capacity? Because geesh, that really limits the field of choices to appoint!

Ahhhh....the paper believes in a religious test. Isn't this against the Constitution that provides there shall be no religious tests.

And we haven't even gotten to the 1st amendment yet.

If I can make no law respecting an establishment of religion, and I deny government jobs/appointments to those that have a Christian conservative religion, then I have just established a religion.....a religion that excludes others on the basis of their particular faith.

Also, there shall be no law denying free exercise of religion. If I deny government jobs/appointments to those who have a Christian conservative religion, then I have told them that the free practice of their religion is inimical to their pursuit of a livlihood, that they will be discriminated against.

BTW, here's the press release on her:

Governor Bush Appoints Cheryl J. Alemán To The 17th Judical Circuit Court

...

TALLAHASSEE Governor Jeb Bush today announced the appointment of Cheryl J. Alemán to the 17th Judicial Circuit Court, which serves Broward County. Alemán will fill a newly created position.

Alemán, 43, of Cooper City, is currently a Senior Assistant Statewide Prosecutor, a position she has held since 1996. Prior to that, she was a Deputy District Attorney for the 1st and 17th Judicial Districts in Colorado from 1984 to 1995.

Alemán received her undergraduate degree from Wheaton College in 1980, and her law degree from the University of Colorado at Boulder in 1983.

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NEW LITMUS TEST for PUBLIC SERVICE:"ARE YOU NOW OR HAVE YOU EVER BEEN

C O N S E R V A T I V E ? "

NEW LITMUS TEST for PUBLIC SERVICE:
"ARE YOU NOW OR HAVE YOU EVER BEEN