A Tough Act To Follow
Janice Rogers Brown's appointment to a federal court is California's loss......
[Harold Johnson] 8/2/05

For Gov. Arnold Schwarzenegger, it's a time for choosing: Who will get his nod to replace Justice Janice Rogers Brown, the champion of limited government who has left the California Supreme Court for the federal appellate bench in Washington D.C.?

Oceans of ink are spilled speculating about the makeup of the U.S. Supreme Court, but a seat on California's high court is also a significant job, and the process of selecting a nominee rates more media attention than it gets. This is especially true when the governor faces the challenge of replacing someone of the caliber of Justice Brown.

Some will urge Schwarzenegger to focus on superficials - to look primarily at candidates' sex or race as he sifts possible successors to the court's first black female justice. But what made Janice Brown a standout wasn't her skin color or chromosomes.

On a seven-justice court whose members span a fairly broad philosophical spectrum, Brown was the libertarian-conservative anchor. She was a star because of her defense of individual rights and her belief that the judge's role is, first and foremost, to protect citizens from public-sector bullying.

Schwarzenegger will best serve the law and the public by finding someone equally driven to rein in the regulators, someone who shares Brown's belief that "courts must be especially vigilant, must vigorously resist encroachments that heighten the potential for arbitrary government action."

Choosing well for the state's high court is important. In many areas of law that touch us most directly - family law, criminal law, issues of business and personal liability - the state courts are where the action is, and the state supreme court can have the final word.

Moreover, often state jurists must be looked to on issues of fundamental personal liberties.

Take property rights. Two U.S. Supreme Court decisions that came down this year will force property owners with complaints about government abuse to seek redress from state judges. The court said this explicitly in San Remo Hotel v. City of San Francisco: A land- owner who claims that regulations have effectively "taken" his property without compensation will almost always have to litigate in state court.

The controversial Kelo v. New Londoneminent domain decision points the same way. It says the Fifth Amendment doesn't bar seizure of property for the benefit of private interests. So, if eminent domain abuse is going to be stopped, it will have to be through state laws and state constitutions - as interpreted and enforced by state judges.

Janice Brown takes property rights seriously. "The right to express one's individuality and essential human dignity through the free use of property," she has written, "is just as important as the right to do so through speech, the press, or the free exercise of religion."

Unfortunately, she was often a dissenter in property rights cases. Indeed, California state courts are notoriously unfriendly to property owners who complain about regulatory overreach. How much worse will the situation be if Gov. Schwarzenegger does not appoint another property rights stalwart to replace her!

Civil rights is also a central issue before the California Supreme Court.

Brown led the way in the court's rigorous enforcement of Proposition 209, the initiative that bans racial preferences and racial discrimination by state and local governments. With her departure - and the death several years ago of another great defender of Prop. 209, Supreme Court Justice Stanley Mosk - it's conceivable the court might backslide and give a pass to the continued flouting of Prop. 209 by bureaucrats in many parts of the state.

Gov. Schwarzenegger should choose a justice who will make sure Prop. 209's mandate for colorblind government is obeyed.

Taxpayer rights are also a concern.

California courts have a history of nibbling at the edges of Proposition 13 and Proposition 218, two state constitutional provisions designed to deter or slow tax increases in this heavily taxed state. Brown always argued for scrupulous adherence to these laws. To undercut them, she said, amounted to legislating from the bench. We need a replacement who shares her respect for the constitution and her concern for the ultimate underdog - the California taxpayer.

A governor's reputation can be permanently burnished - or broken - by a supreme court pick. Jerry Brown carries the stigma of having named the infamous ideologue Rose Bird as chief justice.

In contrast, Pete Wilson won a place of honor in history by putting Janice Brown on the high court. Among pundits and professors who want courts to be agents of government expansion and intrusion, it was a controversial pick. But Wilson stood fast against all criticism, and he had the last laugh as she went on to become, arguably, the court's most esteemed member.

Schwarzenegger is said to take counsel from Wilson. He should look to Wilson's example as he chooses a successor to the freedom-friendly judge Wilson gave us. CRO

This piece first appeared in the Orange County Register.

copyright 2005 Pacific Legal Foundation

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