Jerry Brown

Gov. Jerry Brown of California at his office in Oakland, where he discussed his thinking behind the three unconventional, but applauded, nominations he has made to the State Supreme Court. (Credit: Jason Henry for The New York Times)

By ADAM NAGOURNEY
DEC. 25, 2014

OAKLAND, Calif. — When Jerry Brown first served as governor of California, he set out to reshape the powerful California Supreme Court by appointing its first female chief justice. But his pick, Rose Bird, had never served as a judge before and came to be perceived as a liberal ideologue.

Ms. Bird, along with two other judges Mr. Brown named to the court, was recalled by voters in an election in 1986.

Nearly 40 years after he made that selection, Mr. Brown is again seeking to remake a court that to this day is viewed by legal scholars as among the most influential in the nation, with one study proclaiming it the state court most followed by other appellate judges. And once more, the ever-unconventional Mr. Brown is roiling the waters with a series of head-snapping, if decidedly more applauded, choices for this tribunal.

“I’ve had 37 or 38 years to reflect on the law and what’s needed,” Mr. Brown said in a freewheeling interview conducted in his hideaway, a barely marked office in downtown Oakland, where he formerly was mayor. “The world is very different. Obviously I know more about how the court works and what the reactions are of people to the court. Hopefully I don’t repeat history.”
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Leondra R. Kruger, right, during her confirmation hearing on Monday, with Justice Mariano-Florentino Cuéllar. Credit S. Todd Rogers/The Recorder, via Associated Press

Of the three people Mr. Brown has nominated to the seven-member Supreme Court — the latest confirmed on Monday — not one had a day of judicial experience: Two are law professors and the third is an associate attorney general in the Justice Department.

They are all graduates of the same law school — Yale — which also counts among its alumni a California lawyer who made a career in politics, Mr. Brown.

Mr. Brown’s most recent choice, Leondra R. Kruger, the associate attorney general, lives in Washington and has never practiced law in California. “That was kind of a mindblower,” said David S. Ettinger, a lawyer who writes a blog tracking the California Supreme Court.

Her nomination followed Mr. Brown’s selection of Mariano-Florentino Cuéllar, a law professor at Stanford who also spent much of his career in Washington, serving in the Obama and Clinton administrations. Mr. Brown began this process in 2011 when he nominated Goodwin Liu, a law professor at the University of California, Berkeley, three days after a Republican filibuster forced President Obama to withdraw Mr. Liu’s nomination for the United States Court of Appeals for the Ninth Circuit.

All three of the nominees are under 45, young enough to be handing down rulings long after Mr. Brown, who is 76 and about to be sworn in for his fourth and final term, is gone. Ms. Kruger, who was confirmed by the Commission on Judicial Appointments on Monday, is, at 38, the youngest member of the court in nearly a century. Under California law, the governor nominates justices, and, assuming they are approved by the commission, they appear on the ballot every 12 years for an up-or-down vote.

Mr. Brown’s latest selections have also brought a new measure of diversity to the court. Mr. Liu is the child of Taiwanese parents, Ms. Kruger is the first African-American to serve on the court since 2005, and Mr. Cuéllar was born in Mexico.
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As Mr. Brown moves into what is likely the final chapter of a 45-year career in public life, the California Supreme Court, where he served as a clerk as a young man, is providing him one more way to put a lasting stamp on his state. And not incidentally, it is providing him an opportunity for a bit of a do-over after the troubled appointment of Ms. Bird, who became not only the first woman to serve as the court’s chief justice, but also, in 1986, the first chief justice to be ousted by voters.

Mr. Brown’s selections were the product of a long search that included consultations with two members of the United States Supreme Court — he would not say which ones — and come at a time when some scholars said the California court, while still widely admired, has lost some of the intellectual luster it once had. He said his nominees were modeled after Yale law professors.

“I was looking for people who you could say were ‘learned in the law’ — a phrase you might not hear too much anymore,” Mr. Brown said. “I put the word out: Are there people who are scholars or of unusual ability?”

Mr. Brown’s choices have caught the eye of other judges and legal scholars, reflecting the regard of a court that, among other things, was first state high court to strike down a law banning interracial marriage, has held that mental health professionals sometimes have a duty to warn people about dangerous patients, and found a constitutional right for same-sex couples to marry in California.

“He is appointing superbly qualified people,” said Margaret H. Marshall, a former chief justice of the Massachusetts Supreme Judicial Court. “There is always a tension between appointing people who have already been judges and appointing people who have not previously been judges, but I think that’s an interesting balance for any court to have.”

Joseph R. Grodin, who was appointed to the court by Mr. Brown in 1982 and swept out in the Bird recall, said the appointments could very well alter the court. “Governor Brown is interested in very high quality, and I think he’s achieved that,” he said. “I have very high expectations and some degree of excitement over where the California Supreme Court may be headed.”

At the same time, Mr. Brown’s selections have ruffled some feathers in a state with an abundance of lawyers, law schools, and sitting judges looking to move up the ladder.

“This has been pointed out to me by a number of African-American lawyers, law school professors and judges in recent days, all of whom wonder why the governor had to go all the way to the East Coast to find a justice,” Willie Brown, a Democrat and former speaker for the State Assembly, wrote in a column for The San Francisco Chronicle. “Were there no qualified African-Americans in California?”

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