We must marry Antifederalist sympathies, which recognize the dangers of concentrating power, to a holistic conservative jurisprudence.
Sticking with the state court theme of my last series of posts, I now turn to what Governor Jerry Brown is doing with judicial appointments in California.
State courts are vitally important in their own right, but they can also serve as credential-building “pit stops” for judges ultimately bound for the federal courts or even the U.S. Supreme Court. For example, on SCOTUS, Justices David Souter and William Brennan previously served on their respective states’ supreme courts, as did U.S. Court of Appeals judges Diane Sykes (7th Circuit) and Janice Brown (D.C. Circuit). Without demeaning the significance of state courts, or suggesting that state courts are (or should be) a mere stepping stone to the federal bench, one can view them as analogous to the “farm team” in baseball, where future major league players are frequently groomed and tested.
Given the age and health of some current SCOTUS justices—Ruth Bader Ginsburg is 82 and ailing; several others are approaching 80—it is likely that the next President will have the opportunity to name several new justices—a lasting and influential legacy. Thus, noteworthy state court appointments can provide insight into the pool of potential federal court (or even SCOTUS) nominees by either party. In California, however, Brown’s appointments have been uniformly liberal, so center-right candidates will have to be considered in a future post (leads are welcome).
Prior to his current incarnation, a much-younger Jerry Brown succeeded Ronald Reagan as Governor of California from 1975-1983. His tenure was marred by controversial judicial appointments, particularly to the California Supreme Court. Voters threw three of his activist appointees, led by the notorious Chief Justice Rose Bird, off the California Supreme Court in 1986. Court watchers were hopeful that an older and wiser Brown would be more balanced in his current term as Governor. No such luck. Brown continues to appoint young, untested candidates—who would likely be controversial anywhere else—to the appellate courts, without any sign of popular opposition. With an electorate in California that has shifted (and continues to shift) dramatically to the left, in 2014 the 76-year old Brown was easily re-elected to an unprecedented fourth term–while hardly campaigning.
Who exactly is Brown appointing? Despite his much-vaunted goal of increasing the “diversity” of California’s appellate bench, Brown has a pronounced affinity for young, left-leaning, minority lawyers who attended his alma mater, Yale Law School. Since 2011, Brown has appointed three such candidates to the seven-member California Supreme Court, and has nominated a fourth to the prestigious Second Court of Appeal in Los Angeles. They are remarkably similar in background: Ivy League Democrats, who clerked for liberal federal judges, worked in Democratic administrations, possessed no prior judicial experience, and spent little or no time practicing law in the private sector.
Brown named Goodwin Liu to the California Supreme Court without controversy in 2011, after the U.S. Senate refused to confirm his nomination by President Obama to the Ninth Circuit because he was too liberal. (Think about that!) Liu clerked for Justice Ginsberg on SCOTUS and taught at U.C. Berkeley’s law school before Brown put him on the California Supreme Court at age 40.
Next, Brown appointed to the high court Mariano-Florentino Cuéllar, a 41-year old Yalie who clerked on the Ninth Circuit, worked in two Presidential administrations (those of Bill Clinton and Barack Obama), and taught at Stanford law school (but had no prior judicial experience and very little experience practicing law). As with Liu, the Mexico-born Cuéllar was confirmed without even a whisper of opposition.
Brown’s next appointment to the California Supreme Court, the 38-year old Leondra Kruger, was so novel that even liberal commentators called her a “mind blower.” Kruger, the youngest appointee to the California Supreme Court in history, had never even practiced law in California! After graduating from Yale Law School, clerking for Justice John Paul Stevens on SCOTUS, and briefly practicing law in Washington, D.C., she spent six years working in the Obama administration before earning Brown’s nod. Despite some grumbling about her youth and inexperience, Kruger was unanimously confirmed to the court.
Brown’s most recent nomination, to the Second Court of Appeal (an intermediate appellate court), is the 37-year old Lamar W. Baker, a Yalie who clerked on the Ninth Circuit, briefly worked for an activist law firm in Los Angeles, and spent the past 10 years in federal government service, including five years in the Obama administration (Department of Justice and White House). Like the others, Baker has no prior judicial experience. Unlike the others, Baker has a vocal California critic, in the form of Roger Grace, publisher of the Metropolitan News-Enterprise, a legal newspaper in Los Angeles. Grace has editorialized against Baker, whose nomination will be heard by the Commission on Judicial Appointments on July 23, calling him a “left-of-center youth … bereft of credentials.”
Given the composition of the three-member Commission—California Attorney General Kamala Harris and Chief Justice Tani Cantil-Sakauye are virtually certain to confirm—Baker will likely soon be wearing black robes. Depending on who wins the White House in 2016, we may be seeing more of these youthful California judges, a consideration that Brown presumably entertained before he picked them. “Governor Moonbeam’s” farm team will be deciding cases for decades to come, avenging the defeat of Rose Bird.