Tough Act To Follow
Janice Rogers Brown's appointment to a federal court is California's
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.
Johnson is an attorney with Pacific
Legal Foundation. A Sacramento-based public-interest
law firm, PLF has a long history of litigating for
tax restraint, including in support of Proposition
13 following its enactment in 1978.
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.
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.
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
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.
2005 Pacific Legal Foundation