By Brigid Gaffikin

Progressives around the country have decried the nomination of California Supreme Court Justice Janice Rogers Brown to the United States Court of Appeals in Washington, DC. But there may be a silver lining in Brown's appointment for activists seeking marriage equality for California gays and lesbians.

Many court watchers agree that when Brown leaves, the court will probably see a shift to the left. Although it's unclear who her replacement would be, Assemblymember Mark Leno told the Bay Guardian it would be "hard to see how anyone could be as conservative as Janice Rogers Brown."

During her tenure on the California Supreme Court, Brown made it clear she's one of the most unapologetically conservative candidates in this round of federal judicial nominees. An article published in California Lawyer in June 2001, when Brown's name first circulated as a possible appointee, blasted her "tendency to gratuitously interject personal, political, and philosophical views into her ruling."

UC Berkeley professor Stephen Barnett, who originally supported Brown's nomination to the Court of Appeals, withdrew his support in 2003, citing Brown's "extreme and outdated" views. More recently, opponents of Brown's appointment, such as the Alliance for Justice, have argued that her right-wing opinions are "unconstitutional and personal."

Brown squeaked through to the Court of Appeals because of a deal struck between centrist Democrats and Republicans aimed at averting the Senate Republican leadership's use of the so-called "nuclear option" that would have eliminated the judicial filibuster. Giving the go-ahead to Senate votes on the nominations of Brown, Priscilla Owens, and William Pryor sealed that deal.

Whatever the disadvantages of exporting Brown's brand of ideology-driven judicial activism to the federal bench, her move may prove advantageous in the California Supreme Court's future rulings on same-sex marriage – most notably the case involving Mayor Gavin Newsom's decision last year to have the city issue marriage licenses to same-sex couples.

In March San Francisco Superior Court Judge Richard Kramer ruled the state's position against same-sex marriage to be unconstitutional. Kramer's decision is currently being appealed, and Leno says he expects the case will be heard in the California Supreme Court by the end of 2006.

UC Berkeley professor Jesse Choper says it's unlikely that Gov. Arnold Schwarzenegger's replacement will be anywhere near as conservative as Brown. In fact, there seems to be some consensus that where same-sex marriage is concerned, things can only get better with Brown's departure.

State senator Carole Migden (D-San Francisco) notes that Brown "has not been supportive" of same-sex marriage. And Terry Stewart, lead attorney for San Francisco's same-sex marriage case, says that even though she can't be sure of what Brown's ruling on the case would have been, she wouldn't have expected Brown to vote in the city's favor.

Migden says that same-sex marriage is "not a litmus test" for Schwarzenegger, but she also noted that the governor hasn't made the same sorts of extremist appointments that President George W. Bush has. And even if he did, the legislature is still solidly controlled by Democrats.

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