Gov. Brown thinks long with young CA high-court picks

Gov. Brown thinks long with young CA high-court picks

kruger_leondraJerry Brown will be 80 when his fourth and final term as governor ends in 2018. But it’s plain that he hopes to leave a mark on California life for 40 years after he’s gone — not with the bullet train but with his three young choices to the state Supreme Court.

A Sacramento Bee editorial picks up on part but not all of the significance of Brown’s moves.

With his nomination of rising legal star Leondra R. Kruger to the California Supreme Court on Monday, Gov. Jerry Brown has made his boldest move yet to infuse the court with new blood and high-powered diversity.

Kruger, 38, is not just an African American woman, but will be one of the youngest high court appointees in modern state history if her confirmation goes as expected. Her tender age already has raised a few eyebrows. A “mind-blower,” Santa Clara University law professor Gerald Uelmen termed the governor’s choice.

Brown is right in his effort to invigorate the Supreme Court with a new generation of jurisprudence. The seven-member bench has long been older and more conservative-leaning than the state as a whole.

The court had one Latino and three Asian justices and a 50-50 mix of men and women before Kruger was tapped to fill the seat of retired Associate Justice Joyce Kennard. But before Brown began reshaping it with the appointment of 44-year-old Justice Goodwin Liu in 2011, the average age on the bench was a venerable 69.

With Kruger and Justice Mariano-Florentino Cuéllar, 42, Brown’s other new and distinguished appointment, the high court will have an average age of 56 and a trio of Gen-Xers. That’s not a bad kind of diversity to have in a state this demographically young.

Courts don’t just interpret laws

The diversity angle is notable. But it’s not nearly as important in the long term as the fact that Kruger, Liu and Cuéllar are all very much classic liberal activists — legal thinkers who believe the Constitution is a living document and who see the courts as having a responsibility not just to interpret the law but to fight for social justice.

In other words, the California Supreme Court is on the brink of being the state version of the 9th U.S. Circuit Court of Appeals.

In his piece earlier this week for Cal Watchdog, John Hrabe detailed how Kruger’s advocacy of lesser rights for religious institutions triggered disbelief from traditionalist conservatives at one U.S. Supreme Court hearing.

Legal analyst Emily Green depicts Cuéllar as the sort of legal theorist who is eager to legislate from the bench.

Green points out that Cuellar’s writings endorse legal realism, which, in her words, “champions the idea that courts can and should consider the law in a broader social and political context when making their decisions.” Green notes that Cuellar wrote in his 2001 doctoral thesis that “ ‘[a]s far as the law is concerned, political responses are actually fair game for interpreters [i.e., judges] to consider when crafting their decisions.’ ” The central idea of Cuellar’s thesis, Green adds, is that, in the complex relationship between courts and elected officials, judicial decisions are not the last word on an issue but simply a starting point, “ ‘the tip of the iceberg.’ ”

“Empathy” as a legal theory

As for Liu, this is from a Washington Post story in 2011 about a U.S. Senate filibuster killing his nomination to be a federal judge.

Republicans, however, excoriated Liu’s writings while serving as a law professor at the University of California at Berkeley, saying he adopted a legal standard of “empathy” that encouraged judges to try to view cases through the perspective of the people appearing before them, rather than through a strict reading of the law.

“What do Mr. Liu’s writings reveal? Put simply, they reveal a left-wing ideologue who views the role of a judge not as that of an impartial arbiter, but as someone who views the bench as a position of power,” Minority Leader Mitch McConnell (R-Ky.) said. …

Underlying the debate was Liu’s testimony at the 2006 Supreme Court confirmation hearings for Samuel A. Alito Jr. “Judge Alito’s record envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse . . . where a black man may be sentenced to death by an all-white jury for killing a white man,” Liu wrote.

This tipped the balance for Alexander, Sen. Lindsey O. Graham (R-S.C.) and several other Republicans who cast their first votes ever to support a filibuster of a judicial nominee.

“He went after the man. He went after the man saying, ‘This man represents a bad side of America because of his philosophy.’ I’m not going to tolerate that,” Graham told reporters after the vote. “You don’t have to accept conservative legal thought. I don’t accept liberal legal thought, but I don’t have disdain for the people who embrace it.”

In Lindsey Graham lived in California, he probably would have to “accept liberal legal thought.”

It’s going to be interesting to see where Kruger, Liu and Cuéllar take California jurisprudence. Depending on your politics, you’d almost certainly use a different word than “interesting.”

2 comments

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  1. Rex the Wonder Dog!
    Rex the Wonder Dog! 28 November, 2014, 17:21

    The diversity angle is notable. But it’s not nearly as important in the long term as the fact that Kruger, Liu and Cuéllar are all very much classic liberal activists — legal thinkers who believe the Constitution is a living document Not true. The left and right wingnuts always try to paint a picture that is unfocused and many time incorrect. Lui has NEVER said he thinks the Constitution is a living document, that is a term painted by someone with an agenda. I have also never heard Krueger make this comment. The fact is the Ronald George’s shape the rulings based on their right wing philosophy, and 99% of the time that means they game and manipulate the system in favor of government of Big Business.

    and who see the courts as having a responsibility not just to interpret the law but to fight for social justice.
    The law should be applied equally to everyone, and that does not mean “social justice”. Look at Roberts, he claimed at his confirmation hearing that he was not going to start rewriting the law and changing things, he said he was an “umpire calling balls and strikes”, well the first thing Roberts did was redo decades of stare decisis case law in numerous cases, the most damaging being Citizens united and Kelo, not to mention he changed the pleading standard in all civil rights cases that favored government so much that most civil rights cases brought in federal court are not being dismissed under Roberts “plausibility” standard that tossed out 8 decades of stare decisis case law…of course he could never get away with this without Rubber Stamp Thomas and Scalia. And now Alito, who replaced O’Connor (O’Connor would be very unlikely to rubber stamp many of Roberts decisions).
    In other words, the California Supreme Court is on the brink of being the state version of the 9th U.S. Circuit Court of Appeals.
    Totally false. The 9th Circuit has as MANY right wingnits on it as it does left wingnuts- it is divided JUST AS exactly at 50/50 based on ideology. The problem with the 9th is that it is so large- they decide a third of all federal appeals- that a favorable ruling from it is nearly 100% dependent on which judges you get. If you’re the government you want the right wingnuts, if you’re a prisoner or the plaintiff in a civil rights case you want the left wingnuts. Th entire 9th Circuit is a hot mess of ideology that swings in extremes to both the left AND the right. In fact appointments to all Courts today, especially state courts where the confirmation process is basically nonexistent, are based on ideology, don’t ever think for a second the right and left are different in that respect.

    I caught this interview by accident a few days ago on PBS (don’t usually watch PBS), and I had never, EVER, heard of Zephyr Teachout, but she destroys Roberts views on campaign finance and Citizens United (everyone knows who Larry Lessig is, but Teachout??). She knows her history inside out, blew e away, and the fact is $$$ from Big Business AND public unions have wrecked this nation, it is in a death spiral for everyone except the 1% and the public trough feeders….. and basically Teachout makes a bullet proof case for it IMO.

    Good watch;
    http://billmoyers.com/episode/full-show-public-power-can-defeat-plutocrats/

    Reply this comment
  2. T Mind of Ted Your God
    T Mind of Ted Your God 5 December, 2014, 16:42

    LOL
    The confirmation process is non existent in state court?

    What do you propose?

    The legislature confirm?

    The same legislature that you elected and that approves gov worker compensation?

    LMAO—- you remain lost in a foggy dream….zzzzzzzzzzzzzzzzz

    Reply this comment

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