California Gov. Jerry Brown (Shelley Eades)
SACRAMENTO — Former California Chief Justice Roger Traynor famously observed that the greatest judges change “not by fits and starts, but at the pace of the tortoise that steadily advances though it carries the past on its back.”
With the impending retirement of Associate Justice Marvin Baxter, the state’s high court may become the tortoise that gets a solid nudge in the tail, one appellate lawyer suggested.
“This year, 2014, I see as the beginning of a tectonic shift—as tectonic as events get in the course of judicial events,” said Jon Eisenberg, of counsel at Horvitz & Levy. Gov. Jerry Brown “has an opportunity to make a real impact on that court for a generation. And that opportunity is beginning to materialize now.”
With Justice Joyce Kennard’s retirement in April and Baxter’s planned exit in January, the Democratic governor has the chance to remake a Republican-dominated, moderate court in a matter of months. Brown already laid the groundwork in 2011 with his appointment of scholar Goodwin Liu, now seen as a potential leader of an emerging center-left bloc.
With opinion polls suggesting Brown has an easy path to another four years in office, these two impending Supreme Court nominations are unlikely to be his last. At 76, Brown would likely be the first to say that age is not an automatic barrier to performance. But Justice Kathryn Mickle Werdegar is 78 and Ming Chin will be 72 in August. Neither one of the Republican appointees may be willing to wait for another GOP governor to be elected.
“We’re not talking just three appointments here,” Reed Smith partner Paul Fogel said. “We may be talking as many as five.”
The dual vacancies have expanded the usual judicial parlor game of “Who will the governor pick?” to one that also asks, “What will the court look like when he’s done?”
Court observers typically pegged the Republican-appointed Kennard as liberal-leaning, particularly on social issues. Her replacement is unlikely to track much differently. But Baxter charted a more reliably conservative course on both criminal and civil cases. His departure “is going to make a big difference,” said Gerald Uelmen, a professor at Santa Clara University School of Law. “There’s a real probability that we’ll have a more liberal majority on the court.”
Uelmen envisions a panel that, when split—this is a court that in recent years has valued consensus—will feature a Liu-led liberal wing that will include the two new appointees and possibly Werdegar. As Brown’s sole pick on the court, Liu hasn’t done much to rock the boat.
“He’s had to take the court he’s been placed in,” Eisenberg said. “He’s been pretty good about finding common ground with people like Carol Corrigan.”
But with three years under his belt and a new court dynamic, that could change, Uelmen said.
“I think once he has more people on his side he’ll be a more forceful voice,” he said.
Uelmen also sees Chief Justice Tani Cantil-Sakauye holding a centrist position with Chin and Carol Corrigan maintaining the conservative wing.
Liu, 43, “has an opportunity to spend 30 years on this court, maybe 40,” Eisenberg said. “By the end of the year, Goodwin Liu may find himself at the head of a new bloc of judges of a different jurisprudential stripe.”
The judicial shift could mean profound changes in the court’s approach to hot-button civil issues such as mandatory arbitration and unfair business practices litigation. Baxter is a traditional vote for fewer corporate restrictions, and he was “instrumental in quite a few of the early unfair competition law cases,” said Lisa Perrochet, a partner at Horvitz & Levy.
Baxter wrote the dissent in Gentry v. Superior Court, the 2007 case that blocked employers from enforcing class action waivers in arbitration agreements. The majority strayed, he wrote, in failing to uphold such agreements, which “enjoy special protection under both state and federal law.” The U.S. Supreme Court has since broadened the reach of arbitration pacts in decisions that more closely align with Baxter’s views. And the state high court has been asked to reconsider its reasoning in Gentry.
“Arbitration—that is potentially the biggest game changer” under a new court, Perrochet said.
But Baxter’s positions can also be nuanced. He authored the 1993 majority opinion in Potter v. Firestone, which held that in the absence of physical injuries in toxic exposure cases, plaintiffs had to prove that “more likely than not” they would eventually develop cancer. The opinion struck a middle ground between those who would have required proof of actual physical injuries and those who sought damages based on their fear of developing cancer.
Will a newly recast court skip the consensus building on such issues and veer left? Don’t count on it. In his latest term in office, Brown has positioned himself as the centrist “adult” governing a liberal Legislature prone to government expansion. He has frowned upon legislation creating private rights of action. And he has often sided with law enforcement over civil liberties groups in privacy and Fourth Amendment issues.
“The governor is 30 years older since his last term in office and has since been the mayor of a very large city with enormous issues,” Fogel said. “He’s been the attorney general and he’s been the governor during a fiscal nightmare. So I don’t see a return of the Rose Bird court.”
California may see the emergence of a court ready to play a greater role in tech issues, not because of any targeted effort but “because that’s just the world we live in today,” said Hanni Fakhoury, a staff attorney with the Electronic Frontier Foundation.
“Tech issues are going to come up more frequently in all sorts of cases the court may see,” Fakhoury said. “And I think the younger justices that are likely to get appointed to the bench are going to have more experience with technology in their personal lives as well as in their professional lives.”
Brown’s office has offered no hints as to possible appointees or even when he might announce a name. A spokesman would only say that the governor is “moving expeditiously.”
Brown’s selection of Liu reflected a governor who, with his wife and adviser, Anne Gust Brown, is personally involved in judicial vetting and values a candidate’s intellect and thoughtfulness over traditional appellate court experience. The Browns invited Liu to their Oakland home where the governor’s first question to the UC-Berkeley law professor was “What is your theory of the law?” Brown would later tell reporters.
Brown’s appointments to California’s trial courts also suggest his interest in creating a diverse bench, both in terms of race and gender and background. During his current term he named what are believed to be the first Hmong-American and Muslim judges in the state. That diversity hasn’t extended to political backgrounds. Most of Brown’s judicial appointees have been Democrats.
Since Liu succeeded Justice Carlos Moreno, Brown has been under enormous pressure from the large contingent of Hispanic lawmakers and their allies in ethnic bar organizations to make his next high court nominee a Latino. But he has also been lobbied by African-American groups. The court has not had an African-American justice since Janice Rogers Brown was appointed to the U.S. Court of Appeals for the D.C. Circuit in 2005.
Names of potential nominees that have circulated around the Capitol include state appellate justices Martin Jenkins, Jeffrey Johnson, Miguel Marquez and Maria Rivera; federal district court judges Edward Davila and Yvonne Gonzalez Rogers; and law school deans Kevin Johnson of UC-Davis and Rachel Moran of UCLA. Justice James Humes of the First District Court of Appeal is white, but is frequently mentioned given his former work as executive secretary to Brown and because he would be the first openly gay justice on the high court.
The unexpected vacancy created by Baxter’s retirement gives Brown the chance to please both coalitions, should he want to.
“With two open positions there’s no excuse not to be able to appoint a Latino and an African-American candidate,” said Assemblyman Luis Alejo, D-Watsonville, who serves as vice chair of the Latino Legislative Caucus. “That would be historic.”
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