Justice Janice Rogers Brown

JUSTICE JANICE ROGERS BROWN

Recent partisan and groundless attacks against California Supreme Court Justice Janice Rogers Brown, nominee for the U.S. Court of Appeals for the D.C. Circuit, claim that she is anti-civil rights for an opinion she wrote in a decision before the California Court. U.S. Sen. John Cornyn, a member of the Judiciary Committee, made the following statement to correct the record:

"Proposition 209, an amendment to the California State Constitution (Article I, Section 31), clearly states: 'The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.' So it was the voters of California, not Justice Janice Rogers Brown, who ended racial preferences (not affirmative action, as the critics claim) when they endorsed Proposition 209.

"In Hi-Voltage Wire Works, Inc. v. City of San Jose (Cal. 2000), Justice Brown simply authored the majority opinion for a unanimous California Supreme Court to enforce the clear terms of Proposition 209. Her decision was clearly correct on the law, regardless of her personal views.

"Further, every single judge involved in that case - at the trial, appellate, and state Supreme Court - agreed with Justice Brown that the San Jose program violated the will of the voters as expressed in Proposition 209. And the U.S. Supreme Court has recently concluded that, in California, "racial preferences in admissions are prohibited by state law." [Grutter v. Bollinger, 123 S.Ct. 2325 (2003)]

"Justice Brown's opinion was joined, among others, by then-Justice Stanley Mosk, described by the San Francisco Chronicle as the court's "leading liberal." He was appointed to the Court by Governor Pat Brown, a Democrat. Indeed, Justice Mosk also wrote a concurring opinion stating that 'I agree with the court in the substance of its analysis' and, if anything, 'I would go farther than it does.'

"Justice Brown has a personal background that demonstrates her longstanding commitment to combating racism. She was born in Greenville, Alabama, the daughter of sharecroppers. She attended segregated schools and came of age in the midst of Jim Crow policies in the South. Not surprisingly, then, her opinion in the Proposition 209 case stated that 'discrimination on the basis of race is illegal, immoral, unconstitutional, inherently wrong, and destructive of democratic society.' The opinion also clearly reminded lawyers that the U.S. Constitution 'does not preclude race-conscious programs' to remedy past discrimination.

"If critics don't like Justice Brown's decisions, they should change the law, rather than attack her for partisan political gain. She's just doing her job as a judge, not as a politician. California voters seem very satisfied with her, in fact in 1998, Justice Brown was re-elected with 76 percent of the vote—the highest of all four justices on the ballot that year.

"Even the San Francisco Chronicle editorialized in support of her reelection, stating: 'It takes judges with a deep respect for the law, and a willingness to set aside their personal views when making decisions. It takes judges with fearlessness, with a sense of confidence that the 'right' outcome will not always be the most popular. Californians have a chance to cast a vote for an independent judiciary on November 3 by retaining four Supreme Court justices who, while sometimes coming to very different conclusions, have all demonstrated a commitment to sound decision making. . . . If you don't like a law -- or if it conflicts with the state constitution -- change it. The judiciary's job is to make sure that laws are applied fairly. George, Chin, Mosk and Brown have approached this duty with diligence and integrity. They should be retained.' [San Francisco Chronicle, 9/27/98].

"I sincerely hope that as Justice Brown's nomination comes before the Senate, my colleagues will give the President's qualified nominees what they, and all current and future nominees deserve: the opportunity to have an up-or-down vote on their nomination. Two unconstitutional filibusters are already two too many, and for the sake of the Senate, the nation, and our independent judiciary, I hope Justice Brown will not be added to that list.

"The attacks of partisan special interest groups may succeed as fundraising tools, but their rhetoric withers in the light of the facts."