The Right Coast

July 06, 2005
Stanley Mosk Remembered (Part II) plus a note on William O. Douglas
By Gail Heriot

Paul McKaskle, Professor of Law and former Dean at the University of San Francisco, wrote to draw my attention to two more interesting tidbits about Stanley Mosk:

(1) The New York Times denounced Janice Rogers Brown a while back as the "very worst" among Bush's many "unworthy" judicial nominees. "She regularly stakes out extreme positions, often dissenting alone," the editorial asserted. Exhibit A was her dissent in Aguilar v. Avis Rent-A-Car, 21 Cal. 4th 121 (1999). But the Times forgot to mention that she wasn't exactly alone in her dissent in that case. She was joined by two justices, one of them none other than Stanley Mosk, a man called "the only liberal on the seven-member court" by the New York Times and "the most liberal voice on the court" by the Los Angeles Times. It's hard to call a position extreme if it is joined by two other justices on a seven-justice court, especially if one of those justices is a liberal icon like Stanley Mosk.

(2) Mosk was invited to be graduation speaker at the University of San Francisco Law School in 1979, just a year after his appearance at UC Davis Law School. As at Davis, a student group at USF wrote a public letter urging him to withdraw and the dean to withdraw the invitation. But Mosk refused and so did McKaskle. Some students did walk out of the ceremony, but the vast number of those who stayed gave him a long standing ovation. Interestingly is was a student committee who had chosen Mosk in the first place.

As long as I'm on the subject of liberal icons who wrote eloquent judicial opinions in oppositin to race-based admissions policies, I would be remiss if I failed to mention William O. Douglas. His dissent in DeFunis v. Odegaard, which dismissed as moot a case concerning the University of Washington Law School's admissions policies, included the following passage:

"There is no superior person by constitutional standards. A DeFunis who is white is entitled to no advantage by reason of that fact; nor is he subject to any disability, no matter what his race or color. Whatever his race, he had a constitutional right to have his application considered on its individual merits in a racially neutral manner."

Like Mosk's opinion in Bakke, Douglas's opinion in DeFunis is worth reading. It's an archaeology lesson. This is what liberalism used to mean only a generation or two ago.