Metropolitan News-Enterprise


Wednesday, June 8, 2005


Page 3


Governor Said Likely to Appoint African American as Brown Successor


From Staff and Wire Service Reports


Gov. Arnold Schwarzenegger is likely to support another African American to succeed Justice Janice Rogers Brown, with Third District Court of Appeal Justice Vance Raye, a friend of Brown’s for nearly three decades, a strong contender, court watchers said yesterday.

Raye, a Republican, voted in April to uphold California’s domestic partner law, which grants gays and lesbians virtually the same rights as California married couples.

Speaking briefly with The Associated Press after a news conference in support of Brown, Raye said the judiciary should be racially diverse in order to represent different points of view, and so he’s “sure it will be taken into consideration” by the governor.

“I know some who have reservations about affirmative action,” Raye said. “Uppermost is the need to appoint individuals of integrity, character and ability and that overrides almost everything.”

Raye was appointed to the Court of Appeal by then-Gov. George Deukmejian in 1991, after having served on the Sacramento Superior Court for three years.

The justice is a former judge advocate for the Air Force, where he reached the rank of captain. He served as chief prosecutor at Beale Air Force Base in Northern California during the Vietnam War, largely overseeing cases of desertion, absence without leave, and drug possession.

He was appointed a California deputy attorney general in 1974 and was elevated to senior assistant attorney general by Deukmejian in 1980. Deukmejian selected Raye as legal affairs secretary in 1983, and he held the post for seven years.

Raye recently completed a one-year term as chairman of the Commission on Judicial Performance.

There won’t likely be another Supreme Court vacancy for years, so some legal scholars said race may play perhaps a more important role than party affiliation, especially since the Republican Schwarzenegger has aimed to be a governor for “all the people of California.”

“The prospect of not having any black on the court for some time would give the governor pause,” said Gerald Uelmen of Santa Clara University, who studies the California Supreme Court. “Symbolically, it’s very important that the court represent the diversity of California.”

Schwarzenegger has been bipartisan with his 56 lower court judicial picks so far, tapping 29 Republicans, 20 Democrats and seven judges who declined to state their party affiliation on their voter registration. Fourteen were women.

Ethnic information on judicial applications is voluntary, not mandatory, and of those 56 appointments, only six identified their ethnic background — one was Latino, one was black and four were Asians, said Vince Sollitto, the governor’s deputy press secretary.

Other potential black candidates include U.S. District Judge Saundra Armstrong, a Republican sitting in Oakland; Candace Cooper, a Democrat on the Los Angeles-based 2nd District Court of Appeal and U.S. District Judge Consuelo Marshall, a Democrat sitting in Los Angeles.

Also among those mentioned for the seat are Presiding Court of Appeal Justice Paul A. Turner of this district’s Div. Five; Sixth Justice Patricia Bamattre-Manoukian; and First District Justice Carol Corrigan, who chaired the committee that created the new “plain-English” civil jury instructions.

While Brown would likely stay through September to resolve the cases she’s already heard, Schwarzenegger doesn’t have much time to make his decision known. The Senate on Tuesday ended a two-year filibuster of Brown, clearing the way for a final confirmation vote, likely Wednesday, to the U.S. Court of Appeals for the District of Columbia.

The stakes are high in terms of Schwarzenegger’s legacy: His pick will join a court that is the final arbitrator over disputes involving California law, possibly including a looming lawsuit over same-sex marriage.

While judicial temperament and political background are sure to factor in the search, some legal scholars say race is also important.

Absent Brown, the court would be left with a white woman, an Asian woman, two white men, and an Asian man and an Hispanic man. The court consists of six Republicans, one Democrat and is moderately conservative under Chief Justice Ronald M. George, a white Republican.

“I think he’s going to look very hard for a qualified black nominee,” said Jack Pitney, a Claremont College government professor. “It’s a combination of equity and politics. The equity consideration is that African Americans deserve representation on all levels of government. The political consideration, the failure to name an African American, would subject him to criticism.”

Brown, a 56-year-old Republican, caught the attention of the Bush administration in 2000, when she wrote the majority ruling railing against affirmative action, labeling it a “benign motivation” that fosters discrimination instead of curing it.

Brown’s detractors said she herself has benefited from affirmative action on her climb up the judicial hierarchy, and she’s said that such policies create doubts in society about the legitimacy of upwardly mobile minorities.

Schwarzenegger’s office wouldn’t discuss Brown’s successor, other than say he appoints the most qualified judges, regardless of race or gender. Candidates are reviewed by legal affairs adviser John Davies, Chief of Staff Pat Cleary, and Legal Affairs Secretary Peter Siggins. Schwarzenegger then submits names to a California State Bar committee, which privately reports back to the governor whether they are worthy of sitting on the high court.

That committee, the State Bar Commission on Judicial Nominees Evaluation,  in 1996 said Brown was “not qualified,” but Republican Gov. Pete Wilson appointed her regardless.

Whomever Schwarzenegger chooses will be placed under a microscope, no matter their skin color. But making race a factor would be offensive to Brown, said Bruce Cain, a University of California, Berkeley political scientist. “I doubt that she would appreciate it,” he said.

“If it happens to be someone African American, they should be the best qualified candidate, not the best qualified African American for the job,” adds John Eastman, a Chapman College legal scholar.

John Burris, a prominent black lawyer in Oakland, said skin color should not be the only consideration.

“A black snake,” he said, “will bite you and kill you just like a white snake.”



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