June 12, 2003

The Golden Justice

By: AF Editors

Chief Justice William H. Rehnquist is widely expected to retire at the end of this Supreme Court term. President Bush’s nominee to replace him will undoubtedly face virulent partisan opposition. One of the few areas where Senate Democrats can claim political victory over President Bush is the continued filibuster of Miguel Estrada and Priscilla Owen. Indeed, the treatment of Judge Estrada and Judge Owen is probably a message to the White House. The message is this: any Supreme Court nominee, whatever their qualifications, will be destined for a long, contentious, and perhaps fatal confirmation process.

Yet President Bush has shown an unusual proclivity for risking his own political capital with high-stakes issues like the War on Terror, the Mideast peace process, homeland security and taxation. Presenting an inspiring Supreme Court nominee provides another opportunity for him to think big and swing for the proverbial fences. The judge who ought to stand alongside him in the Rose Garden this summer is already on his public short list of candidates. She is California Supreme Court Justice Janice Rogers Brown, who could become both the first woman and the first African-American to serve as Chief Justice of the United States.

The selection of Justice Brown would be salutary as a matter of personality, policy, and politics. Although she remains fairly guarded about her personal life, her biography is a compelling one, marked by overcoming social, personal, and professional obstacles. Raised in Jim Crow-era Alabama, she went to California after her first husband died of cancer and left her a young widowed mother. Since her graduation from UCLA Law School in 1977, she has spent all but two years of her professional life in public service. She endured a highly publicized, negative confirmation process when then-Governor Pete Wilson nominated her to the California Supreme Court, where she has served with distinction since 1996. Looking back on her heated confirmation process, Justice Brown quipped that it was simply “another opportunity for character development.”

The seminal opinions in her judicial oeuvre have touched on controversial issues like abortion, gun control, free speech, drug testing, and property regulation. In the area of property law, her role has been that of a “great dissenter.” She has chastised her colleagues for routinely ignoring relevant United States Supreme Court precedent and subjecting property rights to disparate treatment. In her Galland v. City of Clovis dissent, she wrote:

The Constitution bespeaks no hierarchy of rights, no preferences with respect to its constraints on government action, no partiality among its protections of liberty. Nevertheless, [the majority] consigns economic rights to a secondary status that can only reflect opposition to the balance the framers carefully struck between public and private power.

Her signature work, however, is her majority opinion abolishing California’s race and sex preferences. In Hi-Voltage Wireworks v. City of San Jose, the California Supreme Court upheld Proposition 209, a ballot initiative that placed a constitutional prohibition against such preferences in government employment, education, and contracting. In a nutshell, Justice Brown favors the active development of a colorblind jurisprudence–one that still recognizes the authority to forbid discriminatory practices and to remedy prior instances of discrimination, but one where race and sex ultimately become non-factors

What is remarkable about the Hi-Voltage case is Justice Brown’s prodigious use of prior dissenting opinions by Justice Stanley M. Mosk, one of the court’s most stridently leftist members. Though often polar opposites on property issues, she found common ground with Justice Mosk in areas ranging from parental notification abortion laws, prior governmental restraints on speech, and the Sixth Amendment right to effective assistance of counsel. So any attempts to categorize Justice Brown as “right-wing” must be reconciled with these opinions. Her refusal to “take sides” on the basis of party affiliation or general political philosophy shows an active and honest intellect.

In terms of overall judicial philosophy, Justice Brown recognizes that the judiciary plays a critical yet restrained role. In her dissent from a Court plurality who struck down California’s parental notification abortion statute in American Academy of Pediatrics v. Lungren, she wrote:

Balance is the Holy Grail for courts in a constitutional system: to strike a balance between the will of majorities, the rights of minorities, and the insatiable appetite of political institutions for power. To preserve a healthy equilibrium in a world hell-bent for absolutes, that is the judiciary’s critical and difficult role.

As a political matter, Justice Brown has already been tested under fire in her prior nomination process. The principal argument against her then–her lack of tangible judicial experience–no longer holds water. The prospect of Democratic Senators openly defending the status quo on race and sex preferences against an accomplished African-American female jurist will not just be good political theater. It will serve notice to them that finding qualified minority candidates for a lauded position is not always so difficult, even without a commitment to cosmetic diversity.

It will soon be time to play ball. And when that time comes, President Bush should send Justice Brown to the plate.