An Act of Faith? [Flap over Jeb's appointment of Christian conservative to bench]

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

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!

That is PRECISELY the goal. Recently in the People's Republic of Canada, they were editorializing and campaigning against candidates for no other reason than BEING Christian, openly and unabashedly. In other words, if you are a Christian in Canada, you are not entitled to hold office. PERIOD! I read the article here on FR a number of months ago. I don't know where I would find it now. Then again I haven't bothered to look.

But, I wonder WHY the People for the American Way don't realize they sound like this? Substitute any other religion in their statements -- Judaism, Islam, whatever-- and people would be blasting them for promoting such one-sided views.

Political Correctness at its best. Apply the same test you mention here to the media. Pick out a film, a news report, a book, a magazine article whatever, that attacks Christianity. It won't be hard to find one, trust me. Then apply your same test. If you changed the Christian to Jew, Muslim or Bhudist in that story about religious extremism, would you see that article or book in print? Probably not. Would that movie about the fundamentalist Christian serial killer EVER be made about a fundamentalist Hebrew serial murderer? BWAHAHAHAHAHA!!!! Yeah right!

My point. This is nothing new. The test can be applied to gender as well. Look at how men are treated in news and entertainment media compared to women. And on and on and on. This has been going on for a long long time. The hipocracy of liberals and the politically correct in general is the common denominator of their entire agenda. If they didn't lie, they wouldn't be in business.

Why don't people blast them for it? They are afraid, and for very good reason. They are being systematically intimidated. Ask a conservative who has been invited to speak on an American campus about the protests and the death threats. Look at the name calling and hate speech laws. Disagree with affirmative action? Why then you are a racist. Disagree with the so called glass ceiling argument? You must be a sexist. Don't want your elementary school aged children being taken off to a Homosexual identity awareness camp without your permission? You are a homophobe. And on it goes. Hate speech laws are being directly targeted at people who question political correctness or the liberal agenda. People in large corporations are being forced to sign documents that say they can be fired for saying or doing something politically incorrect, even away from the workplace. I know this from personal experience. Say something politically incorrect in the workplace in front of a liberal and find out how long it takes you to be marched into HR, or sued, or BOTH.

First of all, I question it every chance I get. It is my new mantra. Political Correctness never goes unchallenged in my presence. I write letters and e-mails. I correct perfect strangers in public when I hear them vomiting forth their politically correct dogma. I call businesses who run politically correct ad's. I respond to them on radio shows. And I send letters to liberal professors at American Universitities.

It is my opinion that if we stopped tolerating their bullying and lies, we would win. You would be amazed at how many of them are absolutely stunned that anyone would DARE disagree with the politically correct ideal. It is really kind of funny, and sometimes you even get bystanders to applaud you.

summer, thanks for the heads-up, I always enjoy your posts.

You may recall that my reaction to the Baldwin post was not all positive. The point I made was that Conservatives sometimes seem over-willing to validate liberal arguments by showing that they too can be politically correct. I labeled that post as showing how conservatives "concede the premise" to the liberals when they validate the importance of race or "social-correctness" as more important than qualifications or principle. I think the point of this post shows that no matter how often conservatives attempt to show that they too can "play to the public concerns" liberals raise, they will never get a free pass to be conservative. Logically, when you concede the premise, you have lost the argument. Sorry, but I think this article shows my concern was valid.

I think the point of this post shows that no matter how often conservatives attempt to show that they too can "play to the public concerns" liberals raise, they will never get a free pass to be conservative. Logically, when you concede the premise, you have lost the argument. Sorry, but I think this article shows my concern was valid.

John, thanks for your post and kind words. I always enjoy reading your replies too!

My conclusion is the opposite of yours.

And, the reason I wind up here is because I believe you are starting from a faulty premise -- that he is "playing" to liberals -- as I feel Gov. Bush is making judicial appointments fairly, as to the best qualified candidates, and without regard to how every move he makes is perceived by a group like PFTAW. I think his concern is for the people of Florida. And, his long list of highly qualified appointments, who are also diverse, proves that.

You'd have to read more about his philosophy to understand how I am drawing this conclusion. And, I do have a link posted, on an earlier post on this thread, which links to his philosophy, if you are interested.

Consequently, I think this post proves he does what he believes is best -- and that has resulted in a wide variety of highly qualified people appointed to the bench here in FL.

John, Just my 2 cents! :)

summer, I will concede to your points regarding Jeb Bush. But, I will be a little stubburn on the point of concession. Even if Jeb is himself being totally true to his principles and appointing people only for their qualifications, the conservative movement at large suffers from the need to battle the liberals by conceding their points and trying to show how they can conform. In this case, it makes it harder for Jeb to be principled, because his conservative appointments will still be beat up by the liberals, and his more "socially aware" appointments will be consdered by the same liberals as "too little, too late". All because so many conservatives feel the social pressures to concede falacious points to the liberals rather than tackle then head on.

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.

I think that this quote from the article shows the hidden agenda here. The leftist wackos who control the American Bar Association in general, and in southeast Florida in particular had this idea that THEY had the right to name the judges. The result of that was seen by the whole country after the last presidential election, when the left-wing radicals on the Florida Supreme Court exposed themselves for what they are.

Fortunately the GOP controlled legislature has taken this power away from them, and now they are going to attack his appointees for whatever causes they can invent.

In a sense we are fortunate that, safe in their south Florida ideological cubbyhole, they think that they can attack Bush for naming Christians to public office. That will not play in this state. Certainly the low-church Protestants who dominate Protestantism in this state will not be entertained by this approach, nor will the Catholics, including the Cubans. A large part of the black community will not think that naming a Christian is a bad thing. They are attacking to advance a selfish personal agenda with a weapon that will not work in Florida.

Most of the "people" haven't the foggiest as to what's actually going on it the courts, do they?

Some of the posters on DU are very much aware of what is going on, and from what I read of their posts, they claim they hope the Senate Dems block every single one of GW's judicial appointments -- as some kind of payback for past delays of Clinton's appointments. IMO, this is the kind of thinking that makes the general population lose interest in politics, and just doesn't serve any useful purpose. Yes, judicial nominees are important -- but so is having enough judges on the bench. Move the process along. Blocking it may just backfire in the end.

...That will not play in this state. Certainly the low-church Protestants who dominate Protestantism in this state will not be entertained by this approach, nor will the Catholics, including the Cubans. A large part of the black community will not think that naming a Christian is a bad thing. They are attacking to advance a selfish personal agenda with a weapon that will not work in Florida.

I agree with you there, LCS. And, as my previous essay began to demonstrate: no one can classify Gov. Bush's judicial appointments in any one way, except that they are all highly qualified.

I think Gov. Bush has done an exceptional job here, of filling the needs of FL's judiciary. And, the fact that there is less in-fighting and less delay is a welcome relief, in my view, in light of the wide variety of people he has appointed.

BTW, I having a hard time imagining a Dem FL governor appointing both (1) a highly qualified Christian conservative female, as well as (2) a highly qualified black male Dem (mentioned in my essay linked in my post #1) -- as Gov. Bush has done.

I think the left loses support, especially in FL, when they complain about appointments that do not fit their image -- because while they may not ever want to admit it, many Christian conservatives live in FL too.

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