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State, national columnists

Brown’s appointees will nudge state Supreme Court leftward

By From page A9 | July 27, 2014

The U.S. Supreme Court has undergone very obvious ideological cycles – depending on who happened to be in the White House when vacancies occurred.

Currently, the court has what might be called a 4-4-1 lineup, with four conservatives appointed by Republican presidents, four liberals appointed by Democrats and one GOP-appointed swing vote in Sacramento’s Anthony Kennedy.

California’s Supreme Court, arguably the nation’s most influential state court, has been no less prone to such swings. With two appointments already and at least one more coming during his second governorship, Jerry Brown may be nudging it leftward – albeit not as far as his father Pat Brown did, nor as far as Brown 1.0 attempted to do.

This week, Brown nominated Stanford law professor Mariano-Florentino Cuéllar, whose record indicates he will be a judicial liberal, to succeed Marvin Baxter, the court’s most obviously conservative member.

Having already named another law professor, Goodwin Liu, to the court, and with another vacancy still to be filled, Brown’s appointees will soon hold three of the seven seats. Because his appointees are in their early 40s, they’ll be making new law for many years.

The remaining four Republican appointees, including Chief Justice Tani Cantil-Sakauye, are relatively moderate. So the Brown appointees will tilt the court to the left with the likelihood that Brown will have one or two more appointments in his second term.

The court was famously liberal in the 1960s and 1970s, thanks to appointments by Brown and his father, including two chief justices, Roger Traynor and Rose Bird. Its bent was most conspicuously displayed in repeated rejection of capital punishment, which was popular among Californians.

The appointment as chief justice of Bird, a longtime Jerry Brown friend who lacked any judicial experience, was a political disaster, in part because he passed over Stanley Mosk, a former attorney general and close friend of Pat Brown, who had appointed Mosk to the court.

Infighting among the justices leaked into the media and magnified the Bird court’s refusal to ratify any death sentences of murderers. It resulted in voters denying confirmation of Bird and two other Jerry Brown-appointed justices in 1986.

The rejection gave Gov. George Deukmejian, a conservative Republican and death penalty champion, the chance to name three new conservative justices, including Baxter, and his law partner, Malcolm Lucas, as chief justice. Republican Gov. Pete Wilson continued the trend in appointments, including that of Ron George as chief justice.

With history in mind, Brown 2.0 is obviously being more judicious in his Supreme Court appointments.

They have some symbolic aspects – one Asian American and one Latino so far – but their legal credentials, unlike those of Bird, are impeccable.

Dan Walters is a columnist for the Sacramento Bee. Reach him as [email protected]

Dan Walters


Discussion | 3 comments

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  • rlw895July 27, 2014 - 8:03 am

    It's about time.

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  • DReaderJuly 27, 2014 - 5:42 pm

    "they’ll be making new law for many years." Walters doesn't seem to know that it's the legislature that makes (writes) new laws. The court makes a decision between legal arguments that are presented when there is a dispute over a law.

    Reply | Report abusive comment
  • Rick WoodJuly 27, 2014 - 11:37 pm

    And in the course of resolving the dispute, sets a precedent that has the force of law. Courts do make law, they are just more limited in their ability to do so.

    Reply | Report abusive comment
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