In most places, Democrats would be rejoicing that for the first time in 30 years, a Democratic governor’s appointees soon will claim a majority on the state’s highest court. But politics are always more complex in California.
Justice Kathryn M. Werdegar, an appointee of Republican Gov. Pete Wilson, announced this week that she will step down from the California Supreme Court in August after 23 honorable years of service on the state’s highest court.
In his second tour as California governor, Jerry Brown has made three Supreme Court appointments: Goodwin Liu, Mariano-Florentino Cuéllar and Leondra Kruger. When he replaces Werdegar, Brown will have appointed a fourth member on the seven-justice court.
As it happens, the partisan virus that afflicts the U.S. Supreme Court and many state courts seems to be in remission on the California Supreme Court, to the credit of the justices and governors of both parties who appointed them.
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An analysis by David A. Carrillo, executive director of the California Constitution Center at UC Berkeley’s School of Law, shows that the justices rarely diverge, party notwithstanding. Liu, for example, has voted with Republican appointees between 92 and 98 percent of the time. Werdegar votes with Liu and Cuéllar 98 percent of the time, and 97 percent of the time with Kruger. U.S. Supreme Court justices split far more frequently.
The degree to which California justices agree is a testament to their collegiality and to the quality of their decisions. According to the justices, another reason is a requirement that they produce determinations within 90 days of holding oral arguments. The late Chief Justice Malcolm M. Lucas, a Republican appointee, wisely imposed that requirement in 1988. The 90-day rule adds certainty to the timing of decisions and has led to greater collaboration.
But to the extent that a Democratic majority taking control of the court matters, there is symmetry in this governor being the one to name that fourth justice.
In his first stint as governor, Brown appointed Chief Justice Rose Elizabeth Bird. Bird became the focus of conservative ire by voting to overturn death penalty cases; businesses displeased with the court’s liberal bent helped fund what became one of the cataclysmic political events of the 1980s. Voters ousted Bird in 1986, along with two other Brown appointees, Justices Joseph Grodin and Cruz Reynoso.
Then Gov. George Deukmejian, a Republican who helped lead the campaign, filled the vacancies, tilting the court to the right. His successor, Wilson, appointed conservatives and moderates, Werdegar included. Republican Gov. Arnold Schwarzenegger elevated the current chief justice, Tani Cantil-Sakauye.
Brown has made a point of selecting young legal scholars who can serve for years to come and likely enhance the court’s standing as a center for wise and progressive jurisprudence.
Diversity is important, and, as Brown has come to know, so is experience. Liu, Cuéllar and Kruger received their law degrees from Yale, Brown’s alma mater. For his fourth appointment of his second term, the governor should consider a hardworking trial or appellate court judge, while keeping in mind that California has fine law schools, too.
As his time in elective office nears its inevitable conclusion, Brown will have the opportunity to redeem the worst political loss of his first stint as governor by appointing a fourth justice. He also will be cementing his legacy on California law for years to come. An important part of that legacy will be having helped create a court that not only remains one of the nation’s most influential, but is also a valuable example in transcending partisanship.