Kamala Harris Channels Her Inner Janice Rogers Brown

The First Black Woman to Serve as California's Attorney General and United States Senator Channels the First Black Woman to Serve on the California Supreme Court

Last week, Kamala Harris had two sound-byte worthy moments in interviews that defied expectations of woke identity politics.¹

First, last Tuesday, at an interview with the National Association for Black Journalists, Kamala Harris was asked what her message was to young black male voters on the economy.

Here was her response:

So, I appreciate the spirit of the question but I’ll tell ya’, I’ve often been asked this question in a way that I’ve had to respond first by saying I think it’s very important to not operate from the assumption that black men are in anybody’s pocket. Black men are like any other voting group. You gotta earn their vote. So, I’m working to earn the vote. Not assuming I am going to have it because I am black. But because the policies and perspectives I have understands what we must do to recognize all communities. And I intend to be a President for all people.²

Then, last Thursday night, in an interview with Oprah, Oprah mentioned her surprise at learning that Kamala was a gun owner. Nonplussed, Kamala replied in response:

If somebody breaks in my house, they’re getting shot.³

These answers might not go over well with woke social justice warriors. Certainly, her answers don’t reflect someone who adheres to identity politics.

After all, shouldn’t one always be thinking about the intersectionality in the struggle against the straight white male patriarchy in order to achieve true societal equity? If we don’t consider our place on the oppression scale, aren’t we allowing the forces of white supremacy, institutional sexism, and cis-heteronormativity to prevail?

Besides, if someone breaks into your home in the middle of the night, shouldn’t you be offering them a sandwich? Giving them an opportunity to demonstrate that they will not be committing a violent crime?

Apparently, despite the racially tinged right wing caricatures of her, Kamala Harris does not think this way.

This type of rhetoric continues a campaign trail pattern where Kamala has eschewed woke talking points of the progressive left. Reviewing her acceptance speech at the Democratic National Convention, Kamala Harris is not going back to the failed politics of 2016, polling expert

Nate Silver

wrote of her:

Instead of privilege dividing us into identity groups, Harris said, our shared privilege as Americans is what unites us. And not only that: instead of feeling bad about ourselves because of our privilege, it gives us a duty to go out and continue kicking ass!

Rejecting the concept of identity-based voting and accepting the concept of justified self-defense with a firearm, Kamala continued this theme in her interview answers.

Some voters might be skeptical as to whether this is genuine or if she is simply reinventing herself for the 2024 Presidential Election.

In a word, no.

And one reason it’s important for her to do more townhalls and interviews is to demonstrate this to the American public, which doesn’t want Trump back but may be skeptical of voting for her.

In giving these frank interview answers, Kamala, who was the first black woman to serve as California’s Attorney General and represent the state in the United States Senate, seemingly channeled Justice Janice Rogers Brown, who was the first black woman to serve on the California Supreme Court.

Like Kamala Harris, Janice Rogers Brown is a highly accomplished licensed member of the California Bar who also happens to be a black woman and has faced the electorate of California, as Justices face retention elections to keep their seat on the Court.⁴ However, that’s where the comparisons pretty much end.

Unlike Kamala Harris, Janice Rogers Brown is an extremely conservative Republican. Governor Pete Wilson (R-San Diego) appointed her to both the California Court of Appeals and the California Supreme Court. When President George W. Bush nominated her to the D.C. Circuit Court of Appeals, Democrats in the Senate filibustered her nomination before eventually relenting to save the filibuster.⁵

Rogers Brown is not like the current crop of prominent black conservatives embraced by the Republican Party, including but not limited to, self-proclaimed “Black Nazi” Republican North Carolina gubernatorial nominee, Mark Robinson, mentally ill rapper and rabid anti-Semite, Kanye West, and conspiracy theorist Candace Owens.

Instead, Rogers Brown is more of a traditional intellectual conservative and longtime Republican who happens to be a black woman.

She believes in economic liberty as a protected constitutional right, strongly supports Second Amendment rights,⁶ and vociferously opposes DEI.⁷ When once asked about diversity, Janice Rogers Brown spoke of the importance of the diversity of thought and experience.⁸ I’m not sure she’s been asked directly, but I suspect that if you break into her house in the middle of the night, you’re going to be shot.

As a United States Senator, Barack Obama voted against her confirmation to the D.C. Circuit Court of Appeals on account of her desire to reinstate long-abandoned constitutional doctrines mandating economic liberty.⁹

Here’s where history takes an interesting turn. California had once had comprehensive governmental race-based and sex-based affirmative action programs including multiple state laws requiring it.¹⁰ The California Supreme Court had upheld these laws and programs as constitutional.¹¹

In 1996, Janice Rogers Brown became the first black woman to serve on the California Supreme Court.¹² That same year, Californians voted for a controversial constitutional ballot initiative, Proposition 209, authored by UC Regent Ward Connerly, an African American opposed to DEI, to ban both race-based and sex-based affirmative action.¹³ The passage of this amendment started a cascade of litigation against existing programs and laws.

Now, imagine being in the shoes of Janice Rogers Brown.

A black woman who had experienced segregation and racial discrimination as a child in the south, her life experiences had led her to oppose DEI, in opposition to a majority of the black community. She hated the opinions upholding these programs. Then, in 2000, as the first black woman to serve on the California Supreme Court, she got the opportunity to rule on an affirmative action case and make her views known.

She did so with an exclamation point. She authored the majority opinion decision that not only struck down the City of San Jose’s requirement that city contract bidders solicit bids from women and racial minority subcontractors but effectively ended all forms of race-based and sex-based affirmative action in the state.¹⁴

Infamously, Rogers Brown took the opportunity to lambast race-based affirmative action throughout the decision, detailing at length past affirmative action cases that she felt had been wrongly decided.¹⁵

She divided an otherwise unanimous Court that agreed that San Jose’s requirement was unconstitutional and that the California Constitution meant what it said.¹⁶ And truthfully, there was no reason for the Court to criticize affirmative action or lambast past cases that upheld affirmative action in order to decide the case.¹⁷ It would later lead to vociferous opposition to her appointment to the D.C. Circuit.¹⁸

For Rogers Brown though, this decision was her way of enforcing a fundamental sea change in law and society. As far as she was concerned, the new system was not just how the system was now that the California Constitution had been changed but instead how the system should be.

As a result of the Court enforcing the State Constitution, California dramatically shifted its policies to combat race-based and sex-based discrimination.¹⁹ The anti-discrimination provisions do not require passivity or endorsement of discrimination nor do they prevent race neutral and sex neutral methods of eliminating barriers to entry and creating opportunities.²⁰ But they don’t allow for the use of race or sex.²¹

While this legal saga over affirmative action unfolded, Kamala was not yet an elected official or even a candidate. She was just a publicly unknown criminal prosecutor in the Alameda County District Attorney’s office and San Francisco District Attorney’s office, quietly proving herself to be a highly effective and skilled trial litigator at getting convictions in difficult cases.

While they are politically different, it’s worth nothing that Kamala came of age in the system that Rogers Brown (and for that matter, Connerly) helped create. A system that afforded her no privileges or benefits based upon her race or her sex but just required that she perform to the best of her abilities to succeed.

She did.

Her political career reflects that system. Kamala never ran for a Voting Rights Act opportunity seat (unlike former President Barack Obama) drawn to elect an African American or an Asian American. She also never ran for an office where she could be installed by the Democratic Party.

In her first race for office, she defeated the incumbent San Francisco District Attorney, a fellow Democrat formally endorsed by the San Francisco Democratic Party, in a general election. Notably, her winning margin was equal to the percentage of registered Republicans in San Francisco.

In 2016, had California voters voted on the basis of identity, Kamala Harris would have lost her race for the United States Senate.²²

This contradicts the current Republican consensus that Kamala Harris is the product of identity politics, advanced merely for her race and sex - a theory that is fully endorsed by some left wing political commentators and academic theorists.

However, perhaps unsurprisingly, facts contradict the narratives of the extreme left and extreme right. Let’s review.

In 2016, Kamala Harris’s general election opponent for the United States Senate, Congresswoman Loretta Sanchez (D-Santa Ana), a formidable and skilled politician who had once been a rising star within the Democratic Party. In addition to being a fellow Democrat, Sanchez was also a woman. She was also Hispanic/Latino.

The reason for this general election matchup is California’s top two system, where all candidates run on the same primary ballot and the top two finishers in the primary then advance to the general election, regardless of their political party.²³ Thus, there was no party installation process.²⁴ Nor was there any way to win the election on Democratic Presidential coattails. Both candidates were Democrats.

Thus, candidate racial identity had every potential to matter to voters. Especially if voters listened to those who say that “representation matters”.

Just like African Americans, Hispanics/Latinos are greatly under-represented in the United States Senate compared to their overall share of the population and have experienced a long and sordid history of racist discrimination.²⁵ Thus, if voters wanted to vote to remedy past historical wrongs and fix under-representation, they could have voted for either candidate.

In California, Hispanics/Latinos are 39% of the population while African Americans are little more than 5% of the population. If voters had voted on the basis of racial identity (African Americans vote for the black candidate, Hispanics/Latinos vote for the Hispanic/Latina candidate, the other races split their votes evenly), Kamala Harris would have lost quite handily.

Of course, that’s not what happened. Most voters didn’t care about race. Kamala Harris won in a landslide.

If anyone ran on identity politics in that race, it was Congresswoman Sanchez who expressed anger that Hispanic/Latino under representation in the Senate was not considered a top priority by numerous Democratic leaders.

For her part, Kamala eschewed race, campaigning instead on her successful record as Attorney General, where, among other things, she achieved landmark settlements for defrauded homebuyers during the Great Recession.

Now, let’s be real. Kamala Harris isn’t becoming a conservative. She may be the legacy of Janice Rogers Brown and Ward Connerly - the product of the California system they built. But she does not share their conservative views.

As

Nate Silver

also wrote in the aforementioned article, “Harris is [not] totally ‘color blind’, she can [just] invoke her racial identity in ways that are a lot more nimble than the nails-on-a-chalkboard tones of [wokeness].”

However, the practical interviews answers she gave last week reflect who Kamala Harris really is and has always been. She is not a product of woke progressive identity politics rooted in racial grievance and hostility towards guns and capitalism.

Instead, she’s a liberal who’s ultimately pragmatic. While she recognizes the importance of individual identity, she believes that focusing on individual identity is ultimately secondary to the importance of lifting up everyone regardless of their identity. She may feel sorry for you and your life circumstances but if you break into her house in the middle of the night, you will regret it.

Hopefully, American voters in the rest of the country are learning that as Kamala does more interviews and townhalls.

But what are your thoughts? Please let me know in the comments!

1. The author of this article is an attorney licensed to practice in the State of California and the District of Columbia. This article and all of the works on this Substack page are statements of the opinions of the author, only, and do not constitute legal advice; they are not intended to be relied upon by any individual or entity in any transaction or other legal matter, past, pending, or future. A paid subscription to this Substack page supports the author’s scholarship and provides access to research that the author has compiled, but does not establish an attorney-client relationship. The author does not accept unsolicited requests for legal advice or representation, and this Substack page is not intended as legal advertising. The opinions expressed on this Substack page reflect the personal views of the author only.

2. https://x.com/i/status/1836118328298881103

3. https://www.foxnews.com/video/6362001621112

4. Cal. Const. Art. VI, § 16(d)(1)(“Within 30 days before August 16 preceding the expiration of the judge’s term, a judge of the Supreme Court or a court of appeal may file a declaration of candidacy to succeed to the office presently held by the judge. If the declaration is not filed, the Governor before September 16 shall nominate a candidate. At the next general election, only the candidate so declared or nominated may appear on the ballot, which shall present the question whether the candidate shall be elected. The candidate shall be elected upon receiving a majority of the votes on the question. A candidate not elected may not be appointed to that court but later may be nominated and elected.”).

5. https://www.nbcnews.com/id/wbna8128400

6. Kasler v. Lockyer, 23 Cal. 4th 472, 503-510 (Cal. 2000)(Brown, J., concurring)(arguing that the Second Amendment should be interpreted to guarantee a right to bear arms).

7. https://www.nationalreview.com/2024/06/janice-rogers-brown-the-constitution-of-liberty/

8

9. http://obamaspeeches.com/021-Nomination-of-Justice-Janice-Rogers-Brown-Obama-Speech.htm