Jewish World Review June 27, 2003 / 27 Sivan, 5763
John H. Fund
The California jurist who may replace
Only a handful of people know if a Supreme
Court vacancy will be announced later
today. The guessing in Washington is that
Chief Justice William Rehnquist is now less
likely to retire, given the White House's
strongly expressed view that it doesn't
want a vacancy. But Justice Sandra Day
O'Connor marches to her own drummer,
and recent events have led several court
observers to speculate she may step down
Justice O'Connor has previously expressed
a desire to return to Arizona with her
husband, who is in poor health. While she
has said she has no plans to retire, she
has clearly hedged in answering such
questions. A few weeks ago she published
a book of memoirs that could be seen as a
swan song for her judicial career. On
Monday the court released a landmark
opinion she wrote upholding the racial
diversity as a "compelling state interest"
that justifies some use of racial
preferences in college admissions. What
better time to leave the bench then when
basking in the praise of the Washington
A likely candidate to replace Justice
O'Connor would be Alberto Gonzales, the
47-year-old White House counsel.
President Bush has genuine affection for
Mr. Gonzales, whom he appointed in 1999
to the Texas Supreme Court, where Mr.
Gonzales gave few signals as to his
underlying judicial philosophy. Mr. Bush
prizes Mr. Gonzales's loyalty, and appointing the first Hispanic to the Supreme Court
could help win votes in a crucial bloc.
But the bland Mr. Gonzales has many skeptics in the conservative movement. They recall
that in 1990, Mr. Bush's father appointed a largely unknown David Souter to the Supreme
Court. John Sununu, the elder Mr. Bush's White House chief of staff, assured
conservatives Justice Souter would be a "home run." He turned out instead to be one of
the most liberal justices on the court. Many fear Mr. Gonzales is another Souter, and with
the court divided 5-4 on racial preferences and many other crucial issues, the stakes are
high with any nominee.
If conservative skepticism about Mr. Gonzales prompts Mr. Bush to turn elsewhere, he
has several choices. Judges J. Harvie Wilkinson and J. Michael Luttig of the Fourth U.S.
Circuit Court of Appeals have excellent résumés and strong conservative records. Emilio
Garza and Edith Jones, both judges on the Fifth Circuit, have strong champions within the
conservative Federalist Society. But my view is that should Mr. Gonzales not be the
nominee for any Supreme Court vacancy, the frontrunner would be Justice Janice Rogers
Brown of the California Supreme Court.
Justice Brown, the daughter of a Alabama sharecropper, is a respected jurist with a
compelling life story. Born in 1949, she arrived in California as a child and worked her way
through college at Cal State Sacramento and law school at UCLA. She went to work in
the state attorney general's office, and in 1991 Gov. Pete Wilson tapped her as his
legal-affairs adviser. In 1994 Mr. Wilson appointed her to a state appeals court; two
years later he elevated her to the state's highest court.
While on the court she has not shied away from controversy. She has said some of her
colleagues have "an overactive lawmaking gland" that compels them to second-guess
legislators. A clear expression of her frustration with judicial activists came in 1997, when
she wrote a dissent in a case where the court majority struck down a state law
stipulating that minors had to obtain parental consent for an abortion. "This case is an
excellent example of the folly of courts in their role of philosopher kings," she concluded.
Her most controversial legal writing will surely be her opinion in a 2000 case that struck
down a minority contracting program in San Jose. She found that it ran afoul of
Proposition 209, the 1996 state initiative approved that abolished racial preferences by
state and local governments. Justice Brown described preferences as an "entitlement
based on group representation" and said they have had pernicious effects on society. Her
opinion led some liberals to tag her as "a female Clarence Thomas."
But she also has a civil-libertarian streak. Last year the California Supreme Court affirmed
the conviction of a black man who had been stopped while riding his bicycle the wrong
way on a one-way street. Police searched him and found methamphetamine, and he was
sentenced to nearly three years in prison. Justice Brown was a lone dissenter from that
opinion, arguing that the circumstances of the arrest could be seen as racial profiling.
Douglas Kmiec, a former Reagan administration official who is now dean of the law school
at Washington's Catholic University, is a close friend of Justice Brown. He believes that
she has both the intellectual gifts and the grit to win a bruising confirmation battle and
make a lasting impression on the Supreme Court. He also believes that her Christian faith
will help her connect with millions of ordinary Americans. Last month, Justice Brown gave
the commencement address to Mr. Kmiec's graduating law students. She chastised
philosophers for trying to shape society "as if G-d did not exist" and frequently made
reference to religious and patriotic themes.
Janice Rogers Brown sounds like the kind of nominee that a lot of Americans could come
to like and admire. But she also is someone who may stir up a whirlwind of opposition
from liberal senators. From what I know of her, senators who tried such strong-arm
tactics would come to regret it. Says California businessman Ward Connerly, who led the
campaign for Proposition 209: "No one who knows her doesn't believe she would come
out on top and leave her critics in the dust."
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©2001, John H. Fund