David Bernstein, a George Mason law prof and now, even more eminently, a Volokh Conspirator, does a very nice point by point slicing and dicing of an unusually scurrilous NYT editorial opposing the nomination of Janice Brown to the D.C. Circuit Court of Appeals. One of those points, I believe, deserves further elaboration.
After noting that “[s]he regularly stakes out extreme positions, often dissenting alone,” the editorial went on to note that
[i]n an important civil rights case, the chief justice of her court criticized Justice Brown for “presenting an unfair and inaccurate caricature” of affirmative action.”
Casual and even close readers of this editorial are likely to conclude that Justice Brown was dissenting in this “important civil rights case” [Hi-Voltage Wire Works, Inc. v. City of San Jose (2000) 24 Cal.4th 537, 101 Cal.Rptr.2d 653; 12 P.3d 1068)]. She was not. In fact, she wrote the opinion for the court, an opinion that upheld the two lower courts that had considered the case and whose holding was accepted by every other justice on the court.
Professor Bernstein writes that it was the chief justice who dissented, which is understandable since in the reported version of the case on Findlaw the chief justice is listed as writing a “[c]oncurring and dissenting opinion.” I’ve just read the opinion, however, and I can find no holding of the court with which the chief justice dissents. To be sure, he writes separately and does not “join” her opinion, and he takes issues with Justice Brown’s tone, arguments, history, etc., and laments that her opinion may lead to misunderstanding about affirmative action. But as I read him he dissents from no holding of the court on any issue. The introductory two paragraphs of his opinion state the matter clearly:
I agree with all of my colleagues that the particular features of the affirmative action program that are challenged in this case violate article I, section 31, of the California Constitution—the section added to the California Constitution in 1996 by the voters’ passage of Proposition 209—because these features grant “preferential treatment” to individuals or groups on the basis of race or gender as proscribed by this newly added constitutional provision. fn. 1
I cannot join the majority opinion, however, because in my view the major portion of that opinion’s discussion is not only unnecessary to the resolution of the issue before us, but is likely to be viewed as less than evenhanded. Particularly in a case involving an initiative measure that is as sensitive and potentially divisive as Proposition 209, I believe it is essential that this court speak through an opinion whose language and analysis clearly demonstrate to the parties and to the public that the court appreciates that its task is simply to interpret and apply the initiative’s language so as to effectuate the electorate’s intent. Viewing the majority opinion as a whole, I believe it falls short of this standard.
In short, the NYT is asserting that Justice Brown does not deserve to sit on a Court of Appeals because of an opinion she wrote for the California Supreme Court that upheld two lower court opinions and whose holdings were joined by every other justice on her court — simply because a liberal justice on the court disagrees with the views she expressed about affirmative action.
And for what it’s worth (obviously not much at the newspaper of record), those views are in perfect accord with the views of the majority of Californians who amended their state constitution to bar racial preferences and with the views of a majority of respondents on virtually every opinion survey on racial preference ever conducted.
Who is out of the mainstream here?
“Who is out of the mainstream here?”
We all are. These days, “mainstream” is just another code word for “liberal,” which in turn is a code word for leftist.
As I recall, Justice Brown’s analysis of the federal constitutional questions (or lack thereof) raised by Prop 209 also fully agreed with the earlier opinion of the Ninth Circuit in Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997).
Good catch.
There’s another point about that NYT editorial: it’s taken wholesale from the PFAW hit job/press release on Brown. Now, it’s okay to do that in an editorial (as opposed to parroting press releases as _news_ stories, which is never okay), but it shows sloppiness and intellectual laziness. The Times clearly didn’t read these decisions before editorializing about them.
The PFAW piece is pretty bad; it acts as if the mere act of dissenting is bad, when she dissents — but when she writes the majority opinion, the existence of other dissents is used against her. Apparently anything short of hosannahs from her fellow justices can be interpreted as a sign of her failings.
This is getting good. So far the NY Times is against Hispanics, Women, Catholics and Blacks. It appears that even the Ku Klux Klan would have a hard time keeping up with the NY Times.
No, no, no, Richard the NYT is not against Hispanics, Catholics, Women and Blacks. Only certain kinds of Hispanics, Catholics, Women and Blacks. Don’t wander too far from the Liberal plantation. They’ll send the dogs after you.