Sometimes, government "checks and balances" fail. The impending confirmation of state Supreme Court nominee Janice Rogers Brown may be one of those times.
According to a news report in The Times, Gov. Pete Wilson misrepresented an evaluation of Brown by the Commission on Judicial Nominees Evaluation when he said the commission's sole objection to his nominee was her "insufficient judicial experience." According to The Times, evaluators received complaints that she was insensitive to established legal precedent, had difficulty grasping complex civil litigation, lacked compassion and intellectual tolerance for opposing views, misunderstood legal standards and was slow to produce opinions.
Despite these findings, all nine justices on Brown's current assignment, the Court of Appeal in Sacramento, endorse her appointment. What the public may not understand is that judicial endorsements are too often meaningless. Judges abide by a code of "one for all, and all for one." No judge is going to openly knock Brown's nomination, because such things have a way of biting one on the political backside down the line.
Brown is the product of Sacramento State University and UCLA Law School. Her total judicial experience amounts to 16 months. Before her appointment to the Court of Appeal, she was Wilson's legal affairs secretary.
As required by law, the governor sent Brown's name to the Commission on on Judicial Nominees Evaluation, known within the legal community as the "Jenny Commission."
Serving on the commission is prestigious and time-consuming. Both lawyers and lay members work extremely hard to obtain information about the nominee's abilities, reputation, experience, work ethic and any biases that might have been detected in the candidate's work. For a state Supreme Court nominee, this examination is intense and microscopic, as it should be. The commission itself is both large and diverse to prevent any biases from distorting its recommendation.
The Jenny Commission reported to the governor that Brown is "unqualified" to be a state Supreme Court justice. No governor since the commission began its work in 1980 has ever pressed the nomination of a candidate whom the Jenny Commission has found "unqualified."
This Thursday, the Commission on Judicial Qualifications will meet to consider Brown's confirmation. As a practical matter, this means she will be confirmed, despite her "unqualified" rating. Chief Justice-designate Ronald M. George, who will move up from associate justice to chief justice the day before Brown's confirmation hearing, is one of Wilson's closest friends. Atty. Gen. Dan Lungren, a Republican, will not step on the toes of a GOP governor and, by happy coincidence, Brown was once a deputy attorney general. The third panelist, Presiding Justice Robert K. Puglia of the 3rd District Court of Appeal, is also a Republican and, better yet, Brown's own presiding justice.
So the state Supreme Court will have another Republican conservative woman, except for the twist that Brown also happens to be black.
Was race a hidden criterion in the Jenny Commission's finding that Brown was "unqualified"? (Probably not. Blacks are represented on the commission, as are women, political conservatives and Republicans.) Would the governor quietly have withdrawn Brown's nomination after receiving the evaluation if Brown were not black? (Based on historical precedent, yes.) Will Brown be grilled heavily by the Commission on Judicial Qualifications? (No.)
More to the point, how are we to view Brown when she stands for her retention election in two years? How does this African American woman, who comes from the first generation of affirmative-action graduates, view "affirmative action?"
Does the anti-affirmative-action governor want us to apply the same standard to a justice-designate as we do to a doctor or an airplane pilot? Do we choose to go to unqualified doctors, or fly with unqualified airline pilots? No. For most people, the doctor or airline pilot can be of either gender and of any color, but the one thing that the doctor or pilot cannot be is "unqualified."
The demand for quality assurance from the governor, in turn, creates another conundrum. The only other person Wilson considered for the court vacancy was Robert C. Bonner, currently a partner at Gibson, Dunn & Crutcher and a former U.S. attorney, federal district judge and former director of the Drug Enforcement Administration. Bonner would have received a near-reflexive "well qualified." If we are to utilize Wilson's own professed "merit system" and "play by the rules," then how do we view the abundantly "well-qualified" white male losing out to the purportedly "unqualified" black female?
Brown will start her state Supreme Court career with two strikes against her. There is an vast difference between questioning a justice's philosophy--as liberals did when U.S. Supreme Court Justice Antonin Scalia was up for confirmation--and questioning a nominee's basic intellectual honesty, as the bar evaluators have criticized Brown.
Personal philosophy cannot replace controlling precedent, and a closed mind violates the fundamental tenets required of a judge, i.e., fairness and an open mind. Unlike Justice Clarence Thomas, who is on the U.S. Supreme Court for life, Brown stands for election in two years. She must quickly and decisively prove that she deserves the seat that patronage has bought her. Perhaps she should keep a picture of ex-Chief Justice Rose Bird on her desk as a reminder of the pitfalls of ideology.*