The same thing happened to one of Moreno's former colleagues on the California Supreme Court. Janice Rogers Brown's speeches were used against her when she was nominated to the D.C. Circuit a few years back.
Moreno's speeches aren't ideological.
"I like to talk about foster care, diversity, pro bono, the legal profession, access to justice," he said. "Sort of broad issues."
A Mexican-American, Moreno had warned in his Prop 8 dissent that the majority decision could put all minorities' rights at risk. And he expanded on that thought Wednesday.
"Sometimes a principle, when extended beyond the current facts, can result in unintended consequences," he said.
Moreno pointed out that his dissent cited the dissent in Korematsu v. United States, 323 U.S. 214, the 1944 U.S. Supreme Court ruling that OK'd the exclusion of Japanese-Americans from the West Coast. Justice Robert Jackson's dissent decried how a ruling one year earlier imposing a curfew on Japanese-Americans had opened the door to internment camps.
"It's uncertain whether or not the principles the court upheld [in the Prop 8 ruling] will be extended to other groups," Moreno said Wednesday. "But it's a possibility."
Asked if Prop 8 would have been upheld if it banned interracial marriage, he said "clearly not." The court, he said, would have been obliged to follow Loving v. Virginia, 388 U.S. 1, the U.S. Supreme Court's 1967 ruling that ended anti-miscegenation laws.
"Even if looking at the California Constitution, race is a protected class," Moreno said. "So under state or federal law, this kind of discrimination would be unlawful."
But didn't the California Supreme Court in In re Marriage Cases, 43 Cal.4th 757, find sexual orientation a suspect class?
"That was my dissent," Moreno said, noting that he "relied heavily on language in the marriage cases affording specific protections against discrimination."
Moreno, who classifies himself as a moderate, is up for retention on the 2010 ballot along with Chief Justice Ronald George and Justice Ming Chin. He said he doesn't expect any major challenges.
"I don't think anybody looks at our court," he said, "as unprincipled or political."
