Wilson Picks Appellate Judge for High Court

Gov. Pete Wilson on Thursday appointed Janice Rogers Brown, a conservative African American appellate judge and former aide, to the California Supreme Court despite a state bar panel rating that she is too inexperienced for the job.

Wilson, announcing the appointment at a Sacramento news conference, also elevated Justice Ronald M. George to lead the court when Chief Justice Malcolm Lucas retires May 1.

George’s promotion received wide praise from legal analysts. He is expected to guide the conservative court in a slightly more moderate direction. He is known as an approachable, savvy former trial judge and prosecutor who is an accomplished administrator with a keen sense of politics and public relations.

Brown’s appointment, however, raised some concerns because of her “unqualified” rating by a committee of the State Bar of California that evaluates nominees for judicial posts. She has served on the Court of Appeal in Sacramento less than two years and previously worked as Wilson’s legal affairs secretary and as a deputy attorney general and private lawyer.

Although friends and colleagues effusively praised her intellect, fairness and accomplishments, some analysts said they were troubled that Wilson would overlook such a finding by an evaluation committee that is generally regarded as fair and thorough.

After praising both jurists, Wilson told reporters that Brown received the “unqualified” rating because of a lack of adequate judicial experience. Wilson’s office declined to release a copy of the evaluation, and the bar evaluating committee cannot legally make public its findings until the confirmation hearing, which is weeks away.

Brown, the daughter of an Alabama sharecropper, received an unqualified rating for the state high court two years ago, prompting Wilson to appoint her instead to the Court of Appeal. She received a “superior” rating for that post, but has produced only six published opinions since then.

“I have personally experienced her intellect, her scrupulous integrity, both personal and intellectual, her temperament, her courage and her character,” Wilson said. “I know her to be an outstanding choice to fill the vacancy.”

Citing rave reviews by other judges, Wilson said he was not afraid of offending fellow conservatives by passing over more experienced judges for a black woman.

“Those who know and those who have reviewed her record will see that it is perfectly obvious that this is no affirmative action appointment,” said Wilson, who is challenging state affirmative action laws in court.

Brown, 46, would be the third woman on the seven-member high court and its first African American justice since Allen E. Broussard, who left the court in 1991.

Brown, whose father eventually left sharecropping for a military career, is considered more conservative politically than Wilson’s past two appointees, Justices Ming W. Chin and Kathryn Mickle Werdegar. Albeit few, Brown’s rulings are generally praised as scholarly, well-written and well-reasoned.

The state bar’s evaluation is merely advisory, and Brown is expected to be easily approved by a three-member confirmation panel. Its members will be Justice George, Court of Appeal Justice Robert K. Puglia, who sent Wilson a glowing recommendation about Brown, and Atty. Gen. Dan Lungren, whose office once employed Brown.

Legal scholars said they believed Brown was the first nominee to the state high court to have been rated unqualified since the state bar began evaluating judicial prospects in 1980. Previously, the bar’s board of governors voted on such nominations, and no California governor in several decades has appointed a candidate with an unqualified rating, analysts said.

Brown, wearing a black suit, stood by nervously as Wilson announced her nomination. She said she had invited her mother to attend the news conference but warned her that under the circumstances it might not be pleasant.

“ ‘In that case,’ ” she quoted her mother as saying, “ ‘I will stay home and pray for you.’ ”

Before becoming Wilson’s legal affairs secretary and advisor on a wide range of legal issues, Brown worked on civil and criminal cases for the state attorney general and practiced in a major Sacramento law firm that handles political and governmental litigation.

“I have come a very long way from the cotton fields of Luverne, Ala., to this nomination here today,” she said. “But all of my life I was taught that you can aspire to anything if you are willing to work for it and to persevere.

“I dreamed a dream like this a long time ago--not this one but a more modest one--a dream that I would be a judge.”

Brown would not be the first California Supreme Court justice with little judicial experience, and the finding by the bar evaluation committee puzzled some. Former Chief Justice Rose Elizabeth Bird had no bench experience when named to head the court by then-Gov. Edmund G. “Jerry” Brown Jr.

J. Clark Kelso, a professor at the McGeorge School of Law in Sacramento, praised the appointment of Brown and suggested that the state bar review its evaluation criteria.

The evaluation committee consists of 28 members, most of them lawyers, from around the state. It sends out hundreds of two-page forms to lawyers and judges around California asking them to evaluate a candidate’s industry, judicial temperament, honesty, objectivity, commitment, integrity and health. The group makes its final evaluation in a secret vote.

“She has a sense of the problems that we face in California, the cultural problems, some of the racial divisions and education,” Kelso said. “She is an extremely thoughtful, reflective person.”

But Santa Clara University law school professor Gerald Uelmen said the bar committee’s “very painstaking” investigation must have concluded that Brown lacked strengths or experiences that would compensate for her scant time on the bench.

The law professor has long advocated putting more minorities on the California Supreme Court, but “the implication that you have to reach to unqualified candidates to achieve diversity carries a very dangerous connotation,” he said.

Brown will start her career on the high court at a decided disadvantage because of her rating, he added, speculating that she may not be able to keep up with the court’s heavy workload and the pressure to write precedent-setting opinions.

Brown, in a Times interview before her appointment, attributed her relatively few published rulings on the Court of Appeal in part to the “luck of the draw.” Cases are assigned randomly, and she has not ruled on many disputes significant enough to warrant publication, she said.

She has ruled that grand jurors can be sued for defamation and argued in a dissent in another case that Sacramento County property owners could not hold government responsible for heavy flood damage. She said government cannot be held responsible for a natural disaster.

In the interview, Brown declined to reveal her feelings about affirmative action, abortion rights or the death penalty. But Steven Merksamer, a friend of Brown who was chief of staff for former Gov. George Deukmejian and who employed her in his Sacramento law firm, said Brown is neither rigid nor partisan.

“She is conservative in the sense we agree on most things,” Merksamer said. “Janice has strongly held views, but Janice is not an ideological person.”

A liberal judge who asked not to be identified predicted that she would be “another Clarence Thomas,” the black U.S. Supreme Court justice who has become known primarily for the conservative views in his opinions. Asked in an interview about that comparison, Brown said she could not comment because she was not familiar enough with Thomas’ writings.

She told an interviewer in 1991 that she was more conservative than Wilson, a remark she said has haunted her since. She now says that she considers herself a conservative but that the comparison with Wilson may no longer be true because both have changed.

“I think there are lots of currents, and people move in all kinds of different ways,” she said.

As a lawyer in the attorney general’s office, Brown represented the state against a sex discrimination “comparable worth” complaint that alleged that the state discriminated against women because jobs they held had lower salaries than work traditionally performed by men. A lawyer who worked with her on the case said she defended the state diligently and effectively and personally believed in its case.

Brown grew up in Alabama at a time of strict segregation. She remembers that her parents would not let her go to movies, restaurants or the bus station where blacks were forced to use separate entrance ways or eat at different counters.

She worked to put herself through college and UCLA Law School. She lost her first husband, an administrator in the Department of Corrections, to cancer several years ago and is now married to Dewey Parker, a jazz musician. She has a son, Nathan Allen Brown, 25, who is in the Air Force.

George, 56, was the judge in the Hillside Strangler trial in Los Angeles. He will preside over a high court that would for the first time have a majority of Wilson appointees.

Unlike most of the court’s Deukmejian appointees, who were placed on the court in the wake of the voters’ rejection of Bird, the Wilson judges may feel less “pressure” to pursue a conservative agenda, law professor Kelso said.

Excluding Justice Joyce Kennard, who frequently votes with liberal Justice Stanley Mosk, most of the Deukmejian judges probably felt they “came in with a mandate from the people to do something about the death penalty,” Kelso said.

“We may see a slight change, like a slight increase in reversals in death cases,” he added.

The court now has one of the highest rates in the nation of affirming death sentences and verdicts, drawing criticism that it overlooks errors by trial courts.

If they are confirmed for the court, as expected, Brown and George would have to be approved by voters in November 1998.

(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)

State High Court Changes

Gov. Pete Wilson has recommended Justice Ronald M. George to succeed Chief Justice Malcolm L. Lucas, who is retiring. He has also recommended Janice Rogers Brown to fill the resulting vacancy on the state Supreme Court.

Ronald M. George

* Born: March 11, 1940

* Residence: Los Angeles

* Education: JD, Stanford Law School, 1964. AB, Princeton University (Woodrow Wilson School of Public and International Affairs), 1961.

* Career highlights: Appointed to the California Supreme Court by Wilson in 1991. Named to state Court of Appeal in 1987 by Gov. George Deukmejian. Appointed to Los Angeles County Superior Court by Gov. Edmund G. Brown Jr. in 1977, where he presided over Hillside Strangler case. President of California Judges’ Assn., 1982-83. Former deputy state attorney general.

****

Janice Rogers Brown

* Born: May 11, 1949

* Residence: Sacramento

* Education: JD, UCLA School of Law, 1977. BA, Cal State Sacramento, economics, 1974.

* Career highlights: Appointed an associate justice of state Court of Appeal by Wilson on Oct. 21, 1994. Legal affairs secretary in Wilson’s cabinet, 1991-94. Private practice in Sacramento with the law firm of Nielsen, Merksamer. Deputy secretary and general counsel, California Business, Transportation and Housing Agency, 1987-89. Deputy attorney general, state Department of Justice, 1979-87.