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

Jerry 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.”