For more than a decade, while California has been among the most liberal of America’s blue states, its highest court has been dominated by leftovers from two of its more conservative governors.
That is about to change. Two retirements soon will let Gov. Brown change the entire tone of the California Supreme Court, long a bastion of pro-business, anti-consumer decisions and sometimes a brake on movements toward same-sex marriage, loose regulation of marijuana and other social issues dear to activists on the left.
The first of the court’s old guard to go was Justice Joyce L. Kennard, appointed in 1989 as the second term of Gov. Deukmejian wound down. Never a leader of the right, for a quarter-century Ms. Kennard usually could be counted on as a pro-business vote in almost every case. She resigned last spring. Mr. Brown has yet to name a replacement.
Next Departee
Next to leave will be fellow Deukmejian appointee Marvin R. Baxter, known for most of the past 20 years as the court’s most conservative member.
He resigned in late spring, effective when his term ends next January.
With 2011 Brown appointee Godwin Liu already the leading liberal in the state judiciary, this means that within six months, the top court should feature three Brown choices, the most for any governor since Mr. Deukmejian got to name six during his eight years in office. Three Deukmejian appointments, however, came after he spearheaded a move to vote three previous Brown-appointed justices off the court when their terms came up for yes-or-no retention votes in 1986. Mr. Deukmejian claimed all – especially former Chief Justice Rose Bird – were soft on crime.
Blame the Sentences
The products of that Deukmejian move are long gone. But the tough sentencing laws he pushed, with okays from justices he appointed — including one of his former law partners — are a root cause of today’s prison overcrowding crisis. Academic studies are inconclusive on whether they also reduced violent crime.
Scant Influence
Now Mr. Brown gets another chance. He turned to Mr. Liu soon after returning to power in Sacramento, not long after Mr. Liu was denied a slot on the federal Ninth Circuit Court of Appeals because Republican U.S. senators objected to his academic writings excoriating the records of U.S. Supreme Court Justices Samuel Alito and John Roberts. With a moderately conservative majority on the court, his influence has not yet been strong.
That could change. Some legal experts believe Mr. Liu, along with Mr. Brown’s new appointees, may quickly form a court majority with the moderate Justice Kathryn Werdegar, the first of ex-Gov. Wilson’s two remaining state Supreme Court appointees.
This depends on two eventualities: First, Mr. Brown has given no clue about who his next high court appointee will be. There has been strong talk of a Hispanic appointee because Latinos have been unrepresented on the court since Gray Davis appointee Carlos Moreno left in 2011, opening the way for Mr. Liu. Mr. Moreno is ambassador to the tiny Central America nation of Belize.
Among potential appointees are Thomas Saenz, president and general counsel of the Mexican-American Legal Defense and Education Fund, Stanford University law Prof. Mariano-Florentino Cuellar and several federal judges appointed by President Obama.
The second eventuality, of course, is that Mr. Brown would have to be re-elected in November in order to choose Mr. Baxter’s successor. That looks like a lock. Mr. Brown netted more than 54 percent of the June primary election vote. But for a misguided portion of the top two primary law, the 2010 Prop. 14, he already would be re-elected. He must run again this fall, this time against former banker and Treasury Dept. executive Neel Kashkari, who drew just over 19 percent of the primary vote. All Republican candidates in that open primary together took only about 35 percent of the vote, barely topping their percentage of registered voters.
Chances are Mr. Brown will get another crack at appointing a state Supreme Court justice next year. His choice likely will come from the same list he is considering for the current vacancy.
The upshot will be a very different court than California has seen since the early 1980s, the last time Mr. Brown had something to say about it.
Mr. Elias may be contacted at tdelias@aol.com. His book, “The Burzynski Breakthrough, The Most Promising Cancer Treatment and the Government’s Campaign to Squelch It,” is now available in a soft cover fourth edition. For more Elias columns, visit www.californiafocus.net
