Affirmative Action Ruling Echoes Decision on Prop. 187

Both were polarizing initiatives that split the California electorate along racial and ethnic lines, were championed by Gov. Pete Wilson and sparked raging national debates that continue to reverberate. And both have been temporarily blocked by federal court orders.

The ruling Wednesday by U.S. District Judge Thelton E. Henderson in San Francisco halting enforcement of Proposition 209 echoes the decision on Proposition 187, passed overwhelmingly two years ago by voters responding to illegal immigration.

Like Proposition 209, Proposition 187 was stopped in its tracks by a federal judge, Mariana R. Pfaelzer, who ruled that its efforts to deny services to illegal immigrants were unconstitutional. Pfaelzer, like Henderson, was appointed by President Carter, a moderate Southern Democrat who governed at a time before intense opposition to immigration and affirmative action surfaced as national issues. Proponents argued that 209, which was approved by 54% of the voters last month, was intended to eliminate “discrimination” and government “preferences,” while opponents argued that it would abolish “affirmative action” and “equal opportunity” programs.

As word of Wednesday’s ruling spread, partisans on both sides of the contentious affirmative action and immigration issues condemned the latest ruling as extreme judicial arrogance or praised it as a court properly fulfilling its historical function.

An outraged Barbara Coe, the Orange County activist who helped craft Proposition 187 and was a strong supporter of Proposition 209, used words like “treachery,” “treason” and “impeachment” in excoriating the federal judiciary.

“The people of California have spoken loudly and clearly,” Coe said, “and there is nothing in the federal Constitution that allows federal judges to negate that.”

Assemblyman Bernie Richter (R-Chico), a former civics teacher and longtime opponent of affirmative action and a supporter of Proposition 187, said Henderson “is not a jurist who knows the law and what he is doing. He knows his ideology and is committed to that.”

But Mark Rosenbaum, the American Civil Liberties Union attorney who successfully argued both the Proposition 209 and 187 cases in court, spoke of the “flowering of the federal court system” in performing one of its most hallowed functions--protecting the rights of minorities and women against extremists and demagogues exploiting people’s fears.

“The Constitution has little tolerance for political wedge issues,” said Rosenbaum, who compared the rulings in the two cases to seminal civil-rights era orders by federal judges striking down Jim Crow practices in the South.

Rosenbaum took the analogy one step further, comparing Gov. Pete Wilson to former Alabama Gov. George Wallace, an arch segregationist. “Well, the governor has just had one of his race cards yanked out of his deck,” Rosenbaum.

Like other Proposition 209 supporters, Wilson said the measure was meant to avoid discrimination and called the judge’s decision “an affront to the majority of California voters.”

From the outset, there was considerable crossover support for the anti-affirmative action measure from Proposition 187 advocates, particularly among white suburbanites.

“The people who worked for us felt like this was the next thing in line,” said Robert Kiley, an Orange County political consultant who ran the Proposition 187 campaign.

Some view the federal court rulings as exposing defects inherent in California’s liberal initiative process, which was born early in the century amid Populist outrage at the power of big corporations and was designed to allow residents to make laws by direct vote.

But, said Jim Shultz of the liberal Democracy Center in San Francisco, the initiative process has spawned measures that were essentially “political devices that tap into public anger.

“When you draft campaign slogans instead of a law, it’s not surprising that a court is going to step in and say there’s a limit,” said Shultz, who wrote a recent study on initiatives.

Robert Post, a professor of law at UC Berkeley, noted that the ease of getting an initiative on the ballot means that measures frequently run into legal roadblocks. “The whole point of the Constitution is to limit at some point and in some way popular will,” Post said.

Others say it is the courts that are out of line.

“It is one of the flaws of our system that a single federal judge can unilaterally eviscerate the will of the people of the state of California on issues that have never been enforced, never been applied against anybody,” said Robert Corry, an attorney with the conservative Pacific Legal Foundation in Sacramento and an advisor to both the 187 and 209 campaigns.

Times staff writer Carl Ingram contributed to this story from Sacramento.