Amid pomp and self-important speechifying, Lt. Gov. Gavin Newsom, Attorney General Kamala Harris and the other statewide elected officials will take their oaths of office a week from Monday.
On that same day, at the Stanley Mosk Courthouse across from the Capitol, Gov. Jerry Brown will preside over what will be an understated but far more historic ceremony, the swearing-in of the newest justices of the California Supreme Court, Obama administration attorney Leondra Krugerand Stanford Law School professor Mariano-Florentino Cuéllar.
With that act, the governor will have reshaped the seven-member court he lost in 1986. Enflamed by a shrewd campaign that exploited the court’s unwillingness to affirm death sentences, voters that year ousted three Brown appointees, Chief Justice Rose Elizabeth Bird among them.
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It was a watershed and perhaps the most lasting legacy of Brown’s first eight years as governor. Republican governors’ appointees have controlled the seven-justice court ever since. With Kruger and Cuéllar joining Goodwin Liu, whom he appointed in 2011, Brown is creating perhaps the most far-reaching achievement of his second eight years in office.
“I was happy to find these people,” Brown told me the other day. “I think they are exemplary. They’re talented. They shine. I think this court will be noticed.”
Kruger, is 38, half Brown’s age. Cuéllar is 42, and Liu is 44. Given their age, they could shape the law for decades to come, unless some Democratic president taps one or more to serve on the one or two federal courts that are seen as more prestigious.
A retired appellate justice groused that the appointees lack judicial experience. As old prosecutors might say, they have not smelled the sweat of a lying addict on a witness stand.
Why, asked former Speaker Willie Brown, did the governor look to the Obama administration’s Solicitor General’s Office for an appointee who is African American, Kruger? Surely, there are qualified California practitioners.
Brown explained his thinking by drawing on history. True, Cuéllar came from Stanford and Liu from UC Berkeley’s Boalt Hall School of Law.
But Phil Gibson was Gov. Culbert Olson’s finance director in 1939 when Olson appointed him to the high court. Gibson served 24 years as chief justice. Roger Traynor was teaching at Boalt Hall when Olson appointed him in 1940. Traynor became one of the greatest justices ever to serve on this or any other high court. Gov. Pat Brown elevated him to chief justice in 1964.
Presidents must navigate a hyperpoliticized gauntlet in the U.S. Senate to get their judicial nominees confirmed. Not so in California. Here, the law recognizes that judicial appointments are a governor’s prerogative. The Commission on Judicial Appointments, led by Chief Justice Tani Cantil-Sakauye, quickly confirmed Brown’s selections, including Kruger last week.
All three are Ivy League sorts, with back stories. Liu, whose parents emigrated from Taiwan and are doctors, went to Rio Americano High School in Sacramento, and Yale Law School, Brown’s alma mater.
Cuéllar spent his early years in Mexico and in the border town of Calexico. His father was an academic who taught at Harvard and Fresno State. Cuéllar, too, is a Yale Law graduate.
Kruger grew up in South Pasadena, the daughter of two physicians, one of whom came from Jamaica. She went off to Harvard, and then Yale Law School. Brown was struck that Kruger was editor of the Yale Law Review, no small feat.
Kruger appeared before the U.S. Supreme Court a dozen times, withstanding withering questioning from the likes of Antonin Scalia, and “never lost her cool,” Brown said. The governor spoke to a U.S. Supreme Court justice – he wouldn’t say which one – who praised Kruger effusively.
“I think these people will acquit themselves well and make some memorable decisions that will maybe echo through the ages,” Brown said.
With the exception of Bird, Brown knew few of the justices he appointed in his first term. The same is true this time. He relied on his legal affairs aides to identify and vet them.
“I’m not following a recipe,” the governor said. “I did want to find people who are accomplished. I think these people are extraordinary. They have good judgment. Very, very intelligent.”
Governors who came after and before Jerry Brown relied on prosecutors to fill judicial openings. Cantil-Sakauye, for one, is a product of McClatchy High, Sacramento City College and UC Davis, and made ends meet for a time by dealing blackjack in Reno. Hardly Ivy League.
She was a Sacramento deputy district attorney when George Deukmejian placed her on the municipal court. Pete Wilson placed her on the superior court. Arnold Schwarzenegger appointed her to the appellate court and elevated her to chief justice near the end of his tenure in 2010.
Under Cantil-Sakauye, the California Supreme Court is a collegial group. The justices rarely dissent, only 4.5 percent of the time in 2014, according to a tally compiled by Santa Clara University School of Law professor Gerald Uelman for the magazine California Lawyer.
When there are 4-3 splits, the more conservative side generally wins. Uelman believes that will start to change, especially in criminal law.
Perhaps the new court will make its mark in privacy in the digital age. Appellate attorney David S. Ettinger believes the court could take up the question of California’s medical malpractice caps. Brown signed the 1975 law that imposed the caps, and the Bird court upheld the law, with Bird dissenting.
Brown, who clerked for California Supreme Justice Mathew Tobriner, talked about some landmarks: Serrano v. Priest, which required equal funding among schools; and the Friends of Mammoth Lakes decision that expanded environmental law. He cited rulings that expanded and limited the right to sue, and struck down race-based deed restrictions, and miscegenation laws.
“Maybe we’re going to find another Holmes, Learned Hand, Cardozo,” Brown said.
Brown could get another appointee or two in his final four years as governor. But courts are conservative by nature, he said. Precedent doesn’t change quickly. Judges rarely reverse themselves. Brown also knows that the justices he has appointed will want to make their mark. The rulings they render will far outlast him. That appeals to his sense of history.
Follow Dan Morain on Twitter @danielmorain.