The case for Leondra Kruger: Why Biden should put the Californian on the U.S. Supreme Court

The last California Supreme Court justice nominated to the nation’s highest court was Stephen Johnson Field, a former Marysville alcalde who wore a coat designed for firing pistols from the pockets, helped strike down the first peacetime income tax out of fear of socialism, and served well into his senility just to break a record. There’s nevertheless reason to hope for a historical repeat a century and a half later — not with respect to Field’s idiosyncratic approach so much as his unusual route to the court.

Like the other two judges on President Joe Biden’s reported short list to succeed Stephen Breyer, California Supreme Court Justice Leondra Kruger would bring exceptional qualifications to the U.S. Supreme Court and correct its historical exclusion of African American women. But Kruger’s reputation for forging consensus among ideologically disparate judges and foregrounding the courts’ institutional credibility makes her a standout in an elite field. So does her capacity to preserve a semblance of geographical balance on a court that leans heavily eastward.

Recruited to the California Supreme Court by then-Gov. Jerry Brown as part of an effort to restore its stature and liberalism, the Los Angeles area native sailed through the confirmation process despite some carping about a career spent mostly on the East Coast as a federal attorney. She has since established a reputation as Brown’s least predictable nominee, a liberal who leans toward incremental rather than activist jurisprudence and regularly finds common ground with more conservative colleagues.

A recent study of Kruger’s record by SCOCAblog, a project of the UC Berkeley School of Law’s California Constitution Center and the Hastings Law Journal, found that the justice is at or near the ideological middle of the state’s highest court, favoring “rigorous analysis” over any partisan agenda. Kruger’s “approach reflects the fact that we operate in a system of precedent,” she told the Los Angeles Times in 2018. “I aim to perform my job in a way that enhances the predictability and stability of the law and public confidence and trust in the work of the courts.”

Given the run of hyper-partisan nominations to the court under Donald Trump, the nation’s underrepresented liberals — many of whom are Kruger’s fellow Californians — may yearn for a far-left counterpoint. But it’s worth noting that a centrist on California’s highest court would not be near the middle of a U.S. Supreme Court that is rapidly hurtling rightward. Kruger has a distinguished record of service representing the Obama administration and has been courted to serve as Biden’s solicitor general. Her rulings have stood up for the rights of California suspects and defendants as well as robust access to government records.

Moreover, Biden’s eventual nominee would join a liberal micro-minority of just three of the nine justices. Under such circumstances, a lefty firebrand could certainly augment a growing pile of indignant dissents, but Kruger’s widely acknowledged gifts for persuasion and mediation could prove more effective. And with a high court increasingly hostile to long-standing precedent and given to arbitrary and nakedly partisan rulings, the California justice’s interest in shoring up confidence in the judiciary is particularly to the point.

Nor should Biden overlook the fact that Kruger is a Californian. The state is home to about one in eight Americans, and the outgoing Breyer is the lone justice from California and one of only two from the entire West. Like the court’s gross underrepresentation of women and minorities, that geographical imbalance has persisted throughout its history. In these and other respects, Kruger is ideally suited to inspire respect for a high court that has squandered too much public trust.