Justice Joyce Kennard, California Supreme Court ()
SAN FRANCISCO — When she steps down from the California Supreme Court on April 5, Justice Joyce Kennard will leave behind a legacy defined in large part by absence: the absence of ideology. The inability to predict how she would vote. Dissents that sometimes persuaded the Legislature, the Ninth Circuit or even the U.S. Supreme Court to erase the court’s decision.
But the 72-year-old justice will undoubtedly also be remembered for her presence. She blazed a trail for women, Asian-Americans and disabled persons for 25 years at the court, the sixth-longest tenure in its history. Along the way Kennard earned a reputation for hard work and precision, from preparing for oral argument to leading a six-year-long project to overhaul California’s appellate rules.
“She would work around the clock to get the job done,” said former Justice Armand Arabian, Kennard’s colleague during the early 1990s. “She was always steady with the heart and heady with the law.”
Kennard was neither politically active nor a big speech maker, said Palo Alto attorney Michael Willemsen, who worked on her staff during the 2000s. “Her only interest was in doing the work of the Supreme Court.”
Kennard notified Gov. Jerry Brown on Feb. 11 that she’d be stepping down from the court in two months, on the 25th anniversary of her arrival. Her service fulfilled “an impossible dream,” Kennard wrote, given the challenging circumstances of her upbringing and emigration to the United States at age 20 with little money or education.
It also gives Brown the second Supreme Court appointment of his term and ninth overall. He will be under enormous pressure to nominate a Latino or African-American. The 25-member state Legislative Latino Caucus chided the governor’s 2011 appointment of Goodwin Liu as a “missed opportunity” to select someone “who would better reflect the diversity of California.”
Soon after Kennard announced her retirement, the caucus released a statement calling the lack of a Latino on the Supreme Court “of great concern.”
“Our message to the governor is there is no shortage of Latino or Latina scholars who could follow Justice Kennard,” said Assemblyman Luis Alejo, D-Watsonville.
The governor’s office kept its consideration of Liu a closely guarded secret in 2011, and the appointment process promises to be just as secretive this time. Brown spokesman Evan Westrup offered no time frame for the governor’s selection and would say only that “our aim is to choose from a broad and diverse pool of candidates, and we’re focused on selecting the most qualified, committed and capable candidate.”
Law school deans Kevin Johnson of UC–Davis and Rachel Moran of UCLA were reportedly under consideration by Brown in 2011. The Latino Caucus that year also recommended Christopher David Ruiz Cameron, a professor at Southwestern Law School; Santa Clara County Superior Court Judge Katherine Lucero; José Padilla, executive director of California Rural Legal Assistance; and First District Court of Appeal Justice Maria Rivera.
Other names now mentioned as possible high court candidates include appellate justices Miguel Marquez of the Sixth District—appointed by Brown in 2012—and Elena Duarte of the Third District. Marquez’s sister Raquel was an early Brown appointee to the Riverside County Superior Court bench.
With strong poll numbers and plenty of money in his reelection campaign account, Brown “has a lot more flexibility” in choosing a justice than if he were in a political dogfight, said John Pitney Jr., a professor of politics at Claremont McKenna College.
Still, there’s “a very strong expectation that he’s going to nominate an Hispanic, and there would be a political cost if he did not do so,” Pitney said. “Politically, from the standpoint of cold, hard politics, the Hispanic population in California is growing, and the African-American population is not keeping pace.” The Supreme Court has gone without an African-American justice since Janice Rogers Brown left for the federal bench in 2005. The name of Justice Martin Jenkins of the First District Court of Appeal has often been mentioned as a future Supreme Court nominee.
The governor’s three-year record of appointments offers a few hints at qualities he might consider in a high court nominee. He has emphasized ethnic and racial diversity. He appointed the first Latinas ever to serve on trial courts in Tulare, Sonoma and Riverside counties, according to La Raza Lawyers of California. He also named the first Muslim and Hmong-American to local benches over the last year, his office said.
Brown also named his former executive secretary, James Humes, to the First District bench in 2012, making him California’s first openly gay appellate justice. Humes, who is already being considered for elevation to a presiding justice position, is mentioned frequently as a possible Supreme Court candidate. Brown also could consider Edward DuMont, now serving as California’s solicitor general. As with Liu, President Barack Obama nominated DuMont to the federal bench in 2010 only to see Republicans block his appointment. DuMont would have been the first openly gay federal appellate court judge.
Brown took a hands-on approach with vetting Liu, inviting the academic to his Oakland home to talk with him and his wife and closest adviser, Anne Gust Brown. His first question to Liu: “What is your theory of the law?” In announcing Liu as his choice, Brown reverently invoked the Roger Traynor Supreme Court that spanned three decades starting in 1940.
Liu’s selection “is a very good template for guessing who he’s looking for,” said UC–Berkeley law professor Jesse Choper. “It’s clear that he’s looking for someone who’s very smart and very thoughtful. … I think he’s going to look for a moderate liberal, maybe like Joyce Kennard.”
Born in Java to a Dutch father and a Chinese-Indonesian mother, Kennard suffered the grief of her father’s death in a Japanese prison camp and her own internment during World War II. She and her mother traveled to West New Guinea after the war, where they lived in a hut in a segregated part of town. She learned English listening to pop music from Radio Australia.
As a teen, Kennard and her mother moved to Holland. A tumor on her leg required amputation above her knee. Kennard eventually took up the trade of typing and shorthand, and upon emigrating to California with her mother she worked as a legal secretary. When her mother died and left her $5,000, she used the money to enroll in college, eventually earning two advanced degrees from the University of Southern California. Fortunately, she said in an interview this week, “in America it’s OK to be a late bloomer.”
Kennard’s legal career included a seven-year stint as a research attorney at the Second District Court of Appeal. Arabian, who was a justice there at the time, told his friend George Deukmejian he thought Kennard would make a good judge. Gov. Deukmejian quickly became a big fan, appointing Kennard to the municipal bench in 1986, then elevating her to superior court and the court of appeal within a couple of years. She was still relatively unknown statewide when in 1989 Deukmejian made her the second woman and first person of Asian descent to sit on the state’s highest court.
Deukmejian was molding a more conservative California Supreme Court following the 1986 ouster of Chief Justice Rose Bird, but within a few years Kennard had set herself apart from the governor’s other appointees, dissenting frequently and siding from time to time with liberals Stanley Mosk and Allen Broussard. “There’s no question, when she got to the high court she had a liberal streak,” said Arabian.
Some of her dissents would eventually wind up as the law of the land. Her mid-1990s dissents in People v. Osband and People v. Marshall anticipated Ring v. Arizona, a 2002 decision in which the U.S. Supreme Court ruled that juries, not judges, must determine special circumstances that give rise to a judgment of death. And with its 2007 decision in Cunningham v. California, the high court adopted her position from People v. Black that juries must decide any factors in aggravation used to impose harsher sentences.
Kennard’s dissents also prompted the Legislature to overrule some California Supreme Court decisions, including in the areas of prenuptial agreements and attorney fees in marital dissolution cases.
GUARDIAN OF THE PROCESS
It was impossible to miss Joyce Kennard at any Supreme Court argument. She was often the first justice to pose a question, sometimes before counsel could complete a sentence. Her questioning breathed life into many a dry argument, though it could also lead to extended side trips, sometimes to the visible distraction of her colleagues.
Former staff attorneys describe an equally high level of engagement throughout the judicial process. Kennard insisted on reading the briefs and multiple staff memos before making up her mind on any issue, said her former research attorney Willemsen. Perhaps because of that case-by-case approach, she is not known for putting her stamp on a particular substantive area of law. But Horvitz & Levy partner David Ettinger and Reed Smith partner Paul Fogel credit her with overseeing a massive overhaul of the appellate rules of court.
The old rules had not been revised since the 1940s, and didn’t take into account modern developments such as service by email. Kennard organized a committee in the late 1990s that included Fogel, Ettinger and former research attorney Peter Belton, and took a hands-on role in the six-year-long revision process. Every three weeks, Fogel said, “she would sit there with a pencil and go through these rules with us line by line.”
The new rules are clearer and accompanied by explanatory commentary. “That’s an important part of her legacy that won’t appear in the casebooks,” said Ettinger.
As for the lengthy questions at oral argument, Willemsen says there was a reason. Kennard would often draft questions in advance of argument, he said, because as a non-native English speaker she wanted to perfect the wording so that artful lawyers couldn’t evade her.
The value she placed on oral argument is clear from her 1999 dissent in Lewis v. Superior Court, Fogel said. In that case she criticized the majority for ruling that in some circumstances an appellate court may issue a writ without hearing argument. “The right to oral argument holds a cherished position in our legal tradition, and rightly so,” Kennard wrote. “As our society becomes increasingly depersonalized, it becomes ever more important to keep those methods of procedure that personalize and humanize the administration of justice.”
In that case, as with the appellate rules, Kennard was concerned with guarding the process to ensure a level playing field, Fogel said.
“I know she was enamored by language,” he said, “and being a foreign speaker was concerned about eliminating any ambiguity. So it’s not a subject area, but a process area.”
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