COMMENTARY | COLUMNISTS | THOMAS ELIAS

Brown gets new chance to make over high court

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’s about to change, as two retirements will soon let Gov. Jerry 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 Kennard, appointed in 1989, as the second term of Gov. George Deukmejian wound down. Never a leader of the right, for a quarter-century Kennard could usually be counted on as a pro-business vote in almost every case. She resigned in April and Brown has yet to name a replacement.

Next to leave will be fellow Deukmejian appointee Marvin Baxter, known for most of the past 20 years as the California court’s most conservative member.

He resigned in June, effective when his term ends in January.

With 2011 Brown appointee Goodwin Liu already the leading liberal in the state judiciary, this means that within six months, California’s top court should feature three Brown choices, the most for any governor since 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. Deukmejian claimed they all — especially former Chief Justice Rose Bird — were soft on crime.

The products of that Deukmejian move are long gone, but the tough sentencing laws he pushed, with OKs 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.

Now Brown gets another chance. He turned to Liu soon after returning to power in Sacramento, not long after Liu was denied a slot on the federal Ninth Circuit Court of Appeals because some 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 California court, his influence has not yet been strong.

That could change. Some legal experts believe Liu, along with Brown’s new appointees, may quickly form a court majority with the moderate Justice Kathryn Werdegar, the first of ex-Gov. Pete Wilson’s two remaining state Supreme Court appointees.

This depends on two eventualities: First, 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 Liu. Moreno is now ambassador to the tiny Central American nation of Belize.

Among potential appointees are Thomas Saenz, president and general counsel of the Mexican-American Legal Defense and Education Fund; Mariano-Florentino Cuellar, Stanford University law professor; and several federal judges appointed by President Obama.

The second eventuality, of course, is that Brown would have to be re-elected in November in order to choose Baxter’s successor. Just now, that looks like a lock. Brown netted more than 54 percent of the June primary election vote, and but for a misguided portion of the top-two primary law, 2010’s Proposition 14, he would already be re-elected.

But he must run again this fall, against former banker and Treasury Department 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.

So chances are that Brown will get another crack at appointing a state Supreme Court justice next year. His choice will more than likely come from the same list he’s considering for the current vacancy.

The upshot will be a very different court than California has seen since the early 1980s, the last time Brown had something to say about it.


Elias is the author of “The Burzynski Breakthrough,” available in a soft-cover fourth edition. His email address is tdelias@aol.com.

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