Declining to hear an appeal, the California Supreme Court brought an apparent end to the saga of California’s historic lawsuit against teachers union job protections, alleged to violate students’ constitutional rights. A majority of justices “declined to hear the case, Vergara v. California, and let stand an appeals court ruling that preserved an array of employment rights,” the Los Angeles Times reported.

“The outcome left some union opponents looking for a different battlefield in the ongoing wars over public education, while others said they should try the courts again. The Vergara litigation was closely watched across the country as a test of whether courts would invalidate rules that protect teachers on the argument that they violate the rights of students.”

In a twist that left reformers clinging to hope that the Vergara cause could still be advanced, the justices who declined to hear the case left the door open to an untested alternative. “The majority of justices didn’t say why they chose not to review rulings by the courts of appeal,” EdSource observed. “Lawsuits involving state education issues generally cannot be appealed to federal courts. However, Theodore Boutrous, lead attorney for Students Matter, said that attorneys were exploring that option or pursuing another lawsuit in state courts.”

Revolutionary potential 

Supporters of the defendants in the Vergara case, including some prominent state Democrats, breathed a sigh of relief. The persistence of the case had not only surprised unions and their supporters but forced them onto treacherous political terrain. At stake was a potent logic of argument seen by pro-union groups as a serious new threat to the status quo for teachers unions, which have attained substantial political power in California and other states. On the one hand, Vergara invoked the language of the landmark Brown v. Board of Education Supreme Court ruling, potentially recasting the debate over teachers unions in explicit civil rights terms. On the other, the case linked up high principle with the practical matters that most often animate change in the education system at the local level. “The main thrust of the suit’s argument was that students’ academic performance would improve if school officials were more easily able to fire bad teachers,” as UPI recalled.

“The plaintiffs challenged five statutes that offer teachers protection — including one that gives tenure after two years and another that makes it more complicated to terminate educators. Such protections have been in place in California and the rest of the United States for decades as a measure to bolster an often shallow candidate pool.”

At first, plaintiffs prevailed. But as the case made its way through the courts, trouble arose. “Los Angeles Superior Court ruled in favor of Vergara in 2014, but an appeals court overturned that decision in April,” the wire added, “which sent the matter to the California Supreme Court.”

Sharp dissents

Despite the majority’s decision, however, three justices dissented, warning that the scope and force of the claims in Vergara required the state Supreme Court at least to review them. Both Goodwin Liu and Mariano-Florentino Cuéllar — “ardent advocates for the rights of minority children as law professors before Gov. Jerry Brown nominated them to the court,” as EdSource noted — insisted “that the appeals court set too high a threshold in concluding that an identifiable group of student, with common characteristics, had to be harmed – the basis for bringing a challenge involving a fundamental right to an education under the state Constitution.”

“Difficult as it is to embrace the logic of the appellate court on this issue, it is even more difficult to allow that court’s decision to stay on the books without review in a case of enormous statewide importance,” wrote Cuéllar, with Liu asking “whether the education clauses of our state Constitution guarantee a minimum level of quality below which our public schools cannot be permitted to fall.”

Leondra Kruger has been confirmed to a seat on the Supreme Court of California, a position to which she was nominated by Governor Jerry Brown last month. Governor Brown previously appointed Goodwin Liu (confirmed in 2011) and Tino Cuellar (confirmed in August).

These appointments make the California Supreme Court a court of national interest, in part because a Democratic President would likely consider Brown’s picks if there is a future U.S. Supreme Court vacancy on his or her watch. Brown’s picks share diversity, elite credentials, and youth. Given that prior judicial experience is a big asset for those hoping to land on a Supreme Court shortlist — it’s not required, but it’s helpful — Brown’s nominations likely expand the set of candidates to be considered if or when there is a future SCOTUS vacancy under a Democratic president in the next few Presidential election cycles.

As the picture above suggests, Kruger has already handled big cases before SCOTUS, representing the Obama administration. If Kruger, Liu and Cuellar are intrigued by this possible promotion, that seems to make it more likely that individually or together they will stake out bold new stands on major issues. There’s a pent-up desire among millions of liberals for more Warren Court-style sweeping rulings addressing perceived issues of social justice. A Democratic president, even a center-left politician, would see appointing activist judges to the high court as an easy way to please big Dem constituencies.

Brown vs. Board of Education for 21st century?

This could bode very well for the reformers behind the Vergara vs. California case.

The trial court judge, Rolf Treu, likened state laws that funnel the worst teachers to the schools with the most troubled students to segregated schools that existed in the South before the 1954 Brown vs. Board of Education ruling, one of the most monumental in U.S. Supreme Court history. The state is now appealing Treu’s finding that teacher protection laws are unconstitutional because of their negative effect on minority students, and the case is close to certain to end up before the California Supreme Court.

If I were a CTA or CFT lawyer, this dynamic would worry me a lot — especially after reading the Vergara editorial in the most influential journal of liberal opinion, the New York Times:

The ruling opens a new chapter in the equal education struggle. It also underscores a shameful problem that has cast a long shadow over the lives of children, not just in California but in the rest of the country as well.

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.”

Gov. Jerry Brown’s decision to nominate UC Berkeley law professor Goodwin Liu to the California Supreme Court is a highly partisan poke in the eye at Republicans, given that GOP congressional criticisms led Liu, in May, to withdraw his name from contention for a slot on the 9th U.S. Circuit Court of Appeals. Liu might be too radical for a post on a federal appellate court, but not for a job on our state’s highest court, which is yet another reminder of California’s leftward drift.

The nomination also is a reminder that the new Jerry Brown isn’t all that different from the old Jerry Brown. Remarking on the Liu nomination, the Wall Street Journal explained, “During his previous stints as governor … Brown’s track record on judicial appointments was notoriously problematic. Former California Chief Justice Rose Bird was removed from office after her 1986 retention election in a wave of anger against her history of liberal rulings. The same fate befell two other Brown appointees, Justices Cruz Reynoso and Joseph Grodin.”

A lot has changed in California in the past 25 years, so perhaps the electorate has caught up with Brown’s ideology. I can’t imagine what it would take for today’s California voters to bounce a judge from office or even to elect a Republican to statewide office.

Brown is an interesting and entertaining character, someone who often defies categorization with his many personas, ranging from environmental guru to law-and-order mayor. But it’s easy to forget that, underneath it all, Brown is a leftist ideologue. It’s that Brown that is on display with the nomination of Goodwin Liu.

As Californians, we’re used to liberal judges. But Liu is a step beyond the usual given that he is a leader in a movement that argues that the U.S. Constitution provides few restrictions on the power of government and is a living document that changes with the times.

The Founders’ Constitution

Traditional constitutional scholars understand that the nation’s founders devised this document to put constraints on the central government. They viewed the government itself as posing the gravest danger to American liberties. Not this group.

I do appreciate that Liu is forthright about his views, which he spelled out in a 2005 book he co-authored, “Keeping Faith with the Constitution.” As the book points out, “Our Constitution retains its vitality because it has proven adaptable to the changing conditions and evolving norms of our society. Its words and principles still resonate centuries after they were written because time and again, as Justice Holmes urged, we have interpreted the Constitution in light of ‘what this country has become.'”

The book celebrates the growth in government power and essentially depicts the traditional view of limited government as an arcane outgrowth of the slave-holding era. Most telling is that Liu’s chapter on “Liberty” deals almost exclusively with gay marriage and abortion-related issues rather than with the traditional negative rights (the right to be left alone) valued by the founders.

In the gotcha world of Washington, D.C., Liu was mostly maligned during the Ninth Circuit confirmation debate for this statement he made in 2005 opposing President George W. Bush’s nomination of Samuel Alito to the nation’s high court: “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 federal agents may point guns at ordinary citizens during a raid, even after no sign of resistance.”

Actually, that’s the one statement from Liu that gives me a sliver of hope about his nomination, given that he seems to recognize the degree to which the nation’s law-enforcement policies allow routine abuses of individual rights. But the rest of Liu’s record is one of eroding legal restraints on government expansion.

Typical for California’s political environment, Liu’s nomination is being discussed in ethnic terms — Latino activists are angry that an Asian man is replacing a retired Latino justice while Asian-American activists celebrate a potential Asian majority on the state high court. But the ethnicity of the justices doesn’t matter. Their philosophy does. And Liu reminds us of the thinking of those who currently run our state.

Radical Views

When Brown was running for state attorney general, I had a short phone conversation with him in which I challenged some of the more radical ideas he championed as a talk show host in the 1990s on a program known as “We The People.” Brown bristled at the question and told me that one shouldn’t take the views out of context because as a radio host his role was to stir debate.

That was a good answer, but it is clear Brown believed the things he said about, say, the evils of modern capitalism. During last year’s gubernatorial campaign, Brown’s spokesman assured me that Brown stood by what he said on those shows, although I was told Brown would phrase things differently these days.

It’s too bad the show’s transcripts were removed from the “We The People” website before the campaign, but the site still posts a speech Brown gave in 1995: “James Hillman talked about how the root of injustice is taking more out of an exchange than you put into it. If you take enough out of it, you really create evil. Well, isn’t that the system? Isn’t that late industrial capitalism? You want to take out more than you put in.”

Forget the obvious ironies — the fact that Brown is a huge defender of the public employee unions that have mastered the art of taking out more from the system than they put in (can we say, “unfunded pension liabilities”?). The statement is pure Brown. For all his brilliance and heterodoxy, Brown is still an old leftist who sees the free market as a zero-sum game and government as our salvation. Liu comes out of that school of thought. This doesn’t bode well for the state.

— Steven Greenhut

Gov. Jerry Brown’s Tuesday appointment of Goodwin Liu to the California Supreme Court will continue the state’s lurch to the Left. Liu clearly believes in a highly activist judiciary for which the U.S. Constitution and the California Constitution are as malleable as Silly Putty. He think our traditional rights, especially property rights and the right to be left alone, are expendable on the road to  Utopia.

Yesterday, my colleague Steven Greenhut quoted a passage from Liu’s free online book, “Keeping Faith With the Constitution.” It’s worth analyzing the passage at length to see precisely why Liu, and his judicial philosophy, will so damage Californians’ life, liberty and property. Here’s the passage:

“Today, Americans do not think twice about the authority of government to respond to economic needs. Social Security, Medicare, collective bargaining and minimum wage laws, disaster assistance, regulation of the financial markets, and robust initiatives to stabilize the economy comprise large parts of the work we expect our federal and state governments to do. Reasonable people may disagree about the specific policies needed to deal with various economic conditions, with regulation of the marketplace, and with the economy as a whole. But there is no question that developing, enacting, and implementing such policies are an important and legitimate part of what government does.”

Parsing Liu

Let’s look at the clauses:

* “Today, Americans do not think twice about the authority of government to respond to economic needs.” Yes they do. That’s why the Tea Party racked up such large victories last November, expelling Liu’s fellow Left-Democrats from scores of seats in Congress and state legislatures, and likely will continue to do so next year.

Certainly, the Republicans caused much of the economic damage when they ran the show in the early 2000s under President Bush and the Republican-run Congress, as well as under Republican Gov. Arnold Schwarzenegger in California. But Democrats, under President Obama and when they controlled both houses of Congress, made matters even worse. And Democrats in California are continuing Schwarzenegger’s policies of destruction.

* “Social Security.” It’s going broke. Starting in 2010, reported the New York Times, the system began paying out more than it takes in. Due to the ongoing Greatest Recession, that happened seven years before previously expected. Things will get worse as 70 million Baby Boomers continue retiring. Sharp cuts in benefits are inevitable.

* “Medicare.” It’ll be broke in 2024, just 13 years from now, its Trustees reported in May. That’s also five years earlier than expected due to the sinking economy.

* “collective bargaining.” Private-sector union membership has declined sharply from around 35 percent in World War II, 66 years ago, to just 6.9 percent today. According to economist Robert Samuelson, “By and large, union concessions were too little, too late. Corporate managers, their business models besieged, were also slow. Both executives and union leaders underestimated the vulnerability of once impregnable market positions. The downfall of the ‘Big Three’ automakers epitomized this disastrous cycle. Nonunion firms gained market share; union membership fell. Unions also had a harder time organizing other companies, because both managers and workers feared job loss.”

The decline of private-sector unions has been accompanied by the rise of pubilic-sector unions. But these unions are different. As one union boss said during last November’s election, “This is our opportunity to elect our own bosses.” For government unions, Liu’s beloved “collective bargaining” means electing compliant politicians, so the unions sit on both sides of the bargaining table. Citizens also have a role: paying the massive taxes that are needed to fund lavish government-worker pay, perks and pensions.

But even that is falling apart. As Ed Ring just wrote in City Journal California (party quoting Greenhut), even now, “Public-employee unions underestimate the magnitude of California’s unfunded retirement liability.” You can only squeeze so much juice from an orange — or money from a taxpayer.

* “minimum wage laws.” In the 1970s, economist Walter Williams’ path-breaking research documented how minimum wage laws were enacted mainly to keep lower-cost black workers from taking jobs from whites.

Here’s a two-minute YouTube by Williams explaining how the minimum wage is a “racist tool”:

* “disaster assistance.” Remember President Bush’s comment to FEMA boss Michael Brown during the Hurricane Katrina disaster? “Heck of a job, Brownie,” Bush said — even as the federal government was interfering with private and local efforts to help people and recovery from the disaster. The bigger disaster was the Federal Emergency Management Agency itself. Even President Obama mocked President Bush’s incompetence during Katrina.

The Feds also interfered with last year’s Gulf Oil spill cleanup, making matters worse.

* “regulation of the financial markets.” The ongoing Greatest Recession is proof that government itself is the major cause of our financial problems. The Feds not only were too incompetent to catch Ponzi-meister Bernie Madoff. The federal government was the major cause of the financial instability, as I noted in an article on Tuesday on how the Greatest Recession began, not just four years ago, but 10 years ago. That’s when President Bush and Federal Reserve Board Chairman Alan Greenspan panicked after the 9/11 attacks. They debased the dollar, kept interest rates artificially low and went on wild spending binges — policies continued by their successors, Obama and Ben Bernanke.

* “and robust initiatives to stabilize the economy.” Beginning with the two Bush bailouts of 2008, especially the TARP, and continuing with Obama’s bailouts and Bernake’s inflationary Quantitative Easing schemes, the government’s actions have further destabilized the economy. Now, the economy is declining again. And the only real solution is to do the opposite of what Liu wants. That is, government must be cut back sharply, at all levels, including the “robust” — and gargantuan, grotesque, Brobdignagian — government of California that Liu now will judge from the bench.

Recall Brown and Liu?

Things are so bad in America now, and especially in California, that people finally are realizing that the Brown-Liu philosophy of über-big government is the cause of our problems. That the Brown-Liu philosophy means rule by a tiny elite of the wealthy and powerful, headed Brown and Lui, with everyone else their groveling peons, and the middle-class virtually eliminated.

It wouldn’t surprise me if recall efforts began against both Brown and Liu.

Those working for the independence of South California will find more ammunition in Gov. Jerry Brown’s pick for the state Supreme Court, Goodwin Liu. The appointee is a radical left-wing professor at U.C. Berkeley (where else?).

Republicans themselves have a lot to answer for in their own appointees to the Supreme Court. Recently retired Chief Justice Ronald M. George, appointed by Republican Gov. Pete Wilson, himself was a radical left-winger on the court.

But Republicans are right to criticize the new appointment. Reported the Chronicle:

State Republican Chairman Tom Del Becarro promptly called it “a predictable but bad pick.” Liu’s nomination “sends yet another signal that California is not a safe place for employers or jobs,” because, Del Becarro said, his belief in a Constitution that evolves over time will encourage lawsuits.

Naturally, Gov. Jerry was effusive in his praise of Liu:

Liu has “the background, the intellect and the vision to really help our California Supreme Court again be one of the great courts in the nation,” Brown said at a news conference. He said the only criticism of Liu has come from “some of the more fanatical Republicans … the ideologues on the right.”

From Jerry’s perspective, anyone to the right of Pol Pot is an “ideologue on the right.”

Ironically, Latinos — Democrats’ major demographic group — are upset that the only Latino on the court, Carlos Moreno, was not replaced by another Latino after his retirement in February.

“It feels like we’re taking a huge step backward,” said Victor Acevedo, president of the Mexican American Bar Association.

The story didn’t note it, but the Liu appointment comes after last year’s election, in which the California Democratic Party nominated not a single Latino to the nine statewide offices on the ballot. A total wipeout for Latinos from the Democratic Party. By contrast, Republicans nominated two Latinos.

The whole nonsense by Gov. Jerry, himself a lawyer and former attorney general, that the nomination of justices is about judicial temperament, is transparent. It’s all political. Did he even consider a highly qualified Republican? Of course not.

So, Acevedo has a point. The appointment is “a huge step backward” — not just for Latinos and Democrats, but for the whole state.

And the appointment is another reason why California needs to be split at least in two.

July 27, 2011