Rose Bird’s Ghost Will Kill CA Death Penalty

Given that Gov. Jerry Brown was just elected to an unprecedented fourth term, it’s not surprising an old controversy would come up: the death penalty. As the Los Angeles Times reported, his recent appointments of three liberal justices to the California Supreme Court give “hope” to those on the state’s death row.

Of course, families and friends of the victims the death-row inmates killed may have a different opinion of whether there is “hope” for justice.

But the state has been through this before under Rose Bird, the controversial state Supreme Court chief justice Brown appointed in 1977, and who served until 1987. During her tenure, she voted against the death penalty 64 times in 64 appeals of death sentences. As a result, in 1986, voters refused to confirm her position on the court, as well as two other anti-death penalty justices, Cruz Reynoso and Joseph Grodin.

The three were not, as commonly stated, “recalled” from the court, although justices can be recalled the way Gov. Gray Davis was in 2003. Rather, Bird and the other two justices failed a routine confirmation. As the Secretary of State’s office explains: “Under the California Constitution, justices of the Supreme Court and the courts of appeal are subject to confirmation by the voters. The public votes ‘yes’ or ‘no’ on whether to retain each justice.”

Ballotpedia notes: “Justices of the California Supreme Court and California Courts of Appeal face retention to 12-year terms in the gubernatorial elections, which are held every four years in November.” Moreover, the only non-retention of justices in California history was that in 1986.

Green mile electric chairBrown appointments

Of Brown’s three recent appointments, in Nov. 2014, two were confirmed by voters: Goodwin Lieu (67.1 percent approval) and Mariano-Florentino Cuéllar (67.7 percent). So they next will go before voters, assuming they continue to hold these offices, in 2026.

The third justice, Leondra Kruger, was appointed after the election. So she will face confirmation by voters in 2018.

Brown also can be expected to appoint similar justices over his last four years in office. He has stated he wants to remake the court in an activist mode.

Which means the death penalty is dead in California — even though Brown, sloughing off Rose Bird’s legacy, won office in 2010 by saying he wouldn’t impede the death penalty.

Meanwhile, numerous court challenges have prevented the death penalty from being imposed in California since 2006, leaving 748 convicted murderers on Death Row. And just 13 convicted killers have been executed in the state since 1978.

In 2012, voters barely defeated Proposition 34 by 52 percent to 48 percent, which would have banned the state death penalty. Brown supported it.

Potentially, California could get around federal court limitations on the death penalty by adopting the methods of Texas, where 72 executions have been carried out since 2010. But there’s no way the California Legislature would do that; nor would Gov. Jerry Brown sign any such legislation into law.

What likely will happen is that, once the Brown Justices become a four-member majority on the seven-member court, they will decide a case that finds the death penalty is “cruel and unusual punishment.” They will not be recalled. Nor will their future confirmations be denied.

This also means all the activism of pro-death penalty Californians over the years, believing the state was a democracy that followed the voters, was misguided, if not delusional. On this as on so many other issues, your vote does not count.

In California, the death penalty is dead.

This piece was originally published by

Will young CA justices use Vergara case to audition for SCOTUS?

The Volokh Conspiracy, the wonderful legal blog founded by UCLA law professor Eugene Volokh, had a provocative post about what might happen now that Gov. Jerry Brown has named three acclaimed youngish scholars to the California Supreme Court. George Washington University law professor Orin Kerr writes:

Leondra Kruger has been confirmed to a seat on the Supreme Court of California, a position to which she was nominated by Governor Jerry Brown last month. Governor Brown previously appointed Goodwin Liu (confirmed in 2011) and Tino Cuellar (confirmed in August).

These appointments make the California Supreme Court a court of national interest, in part because a Democratic President would likely consider Brown’s picks if there is a future U.S. Supreme Court vacancy on his or her watch. Brown’s picks share diversity, elite credentials, and youth. Given that prior judicial experience is a big asset for those hoping to land on a Supreme Court shortlist — it’s not required, but it’s helpful — Brown’s nominations likely expand the set of candidates to be considered if or when there is a future SCOTUS vacancy under a Democratic president in the next few Presidential election cycles.

As the picture above suggests, Kruger has already handled big cases before SCOTUS, representing the Obama administration. If Kruger, Liu and Cuellar are intrigued by this possible promotion, that seems to make it more likely that individually or together they will stake out bold new stands on major issues. There’s a pent-up desire among millions of liberals for more Warren Court-style sweeping rulings addressing perceived issues of social justice. A Democratic president, even a center-left politician, would see appointing activist judges to the high court as an easy way to please big Dem constituencies.

Brown vs. Board of Education for 21st century?

This could bode very well for the reformers behind the Vergara vs. California case.

The trial court judge, Rolf Treu, likened state laws that funnel the worst teachers to the schools with the most troubled students to segregated schools that existed in the South before the 1954 Brown vs. Board of Education ruling, one of the most monumental in U.S. Supreme Court history. The state is now appealing Treu’s finding that teacher protection laws are unconstitutional because of their negative effect on minority students, and the case is close to certain to end up before the California Supreme Court.

If I were a CTA or CFT lawyer, this dynamic would worry me a lot — especially after reading the Vergara editorial in the most influential journal of liberal opinion, the New York Times:

The ruling opens a new chapter in the equal education struggle. It also underscores a shameful problem that has cast a long shadow over the lives of children, not just in California but in the rest of the country as well.

This article was originally published by

Gov. Brown’s “Mind-blower” of a Nominee

Once upon a time, Americans held seasoned judges and legal practitioners in esteem. Lewis Powell, Henry Friendly, Louis Brandeis, and Charles Evan Hughes were all accomplished lawyers in private practice before they

Leondra Kruger

Leondra Kruger

served on the bench. Representing clients in the real world tends to instill an appreciation for the rule of law. Today, by contrast, a Yale law degree, a prominent post in a Democratic presidential administration, and a desire to place one’s hands on the levers of judicial power are the tickets to a seat on the California Supreme Court. Governor Jerry Brown’s choice of 38-year-old Leondra Kruger to replace veteran jurist Joyce Kennard reinforces the trend. Kruger has never practiced law in the Golden State.

California law is vast and complex, and the state Supreme Court is its final arbiter. Unlike Kennard, who served at every level of the judiciary before being elevated to the Supreme Court in 1989, Kruger has never donned the black robe. As with Brown’s two prior appointments to the court, fellow Yale law grads Goodwin Liu and Mariano-Florentino Cuéllar, Kruger lacks private-sector legal experience, too. Presumably, she will learn on the job.

Kruger’s nomination is remarkable for other reasons. If confirmed by the state’s Commission on Judicial Appointments, she would be the youngest person ever appointed to the state’s highest court. She barely meets the state constitutional requirement that judges be members of the state bar for at least ten years. Referring to Kruger’s youth and inexperience, law professor and commentator Gerald Uelman called her appointment a “mind-blower.” And not that anything is wrong with Yale, but couldn’t the governor have found a qualified nominee from Stanford, Berkeley, UCLA, or some other California law school?

Brown is a pioneer in “judicial diversity.” In two stints as governor, he has appointed blacks, gays, Muslims, women, and other previously under-represented groups. But his selection of three Ivy League-educated lawyers with no meaningful private-practice experience to serve on California’s highest court is unprecedented. These appointments will transform the state’s judiciary for decades to come.

No one questions Kruger’s intelligence. She was editor-in-chief of the Yale Law Journal and clerked on the U.S. Supreme Court. She worked briefly at two law firms in Washington and taught for a year at the University of Chicago. She spent the past eight years working in various positions at the U.S. Department of Justice. But she is plainly too inexperienced to serve on California’s Supreme Court.

Service as a trial-court judge has long been considered an essential prerequisite for appointment to the appellate bench. With his last three appointments to the California Supreme Court (and the recent appointment of Therese Stewart to the First District Court of Appeal), Brown has discarded that standard. Prior experience as a trial judge is more than a mere matter of custom or an outmoded artifact of the past. Appellate judges play an important but limited role in our system of government. The legislature passes laws, juries decide facts, trial judges apply laws to the facts, and appellate judges interpret the laws. When these roles get confused, bad things happen: laws get ignored, judges legislate from the bench, and appellate judges usurp the fact-finding function.

Serving as a trial judge provides a critical measure of humility for bright, politically connected lawyers who happen to be appointed to the appellate bench. It also reinforces the narrow role that wearing a black robe implies. The tendency toward judicial activism is greater for younger appointees because law schools have become increasingly politicized and the dominant philosophy of “legal realism” encourages recent graduates to view the law as a malleable instrument to accomplish politically desirable ends.

Kruger’s lack of private-practice experience is also troubling. She has worked mainly in the area of “public law,” representing the federal government in matters involving the projection of federal power. Liberty—or autonomy—is the absence of government power. In a civil society, free citizens organize themselves primarily through “private law” mechanisms—consensual contractual arrangements; the formation and operation of privately owned businesses; lending and borrowing money; and so forth. The laws governing these activities—contracts, real property, corporations, secured transactions, negotiable instruments, intellectual property—are the mainstay of lawyers in private practice and grist for a free market economy. Lawyers unfamiliar with the area of “private law,” if appointed to the bench, tend to be unsympathetic to the vital importance of such voluntary arrangements.

The vanguard of young, Ivy League-educated, activist-minded judges Brown is appointing to the California Supreme Court is not “diverse” at all. Sure, they represent different ethnicities and races, but they’re all Yalies and liberal Democrats, with no signs of respect for judicial restraint. One of the cases Kruger argued before the U.S. Supreme Court was Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, where she advocated overturning the long-recognized “ministerial exception” to anti-discrimination laws in order to expose religious organizations to liability for their hiring and firing decisions involving ordained personnel. In 2012, the U.S. Supreme Court rejected Kruger’s radical position unanimously.

Beginning his fourth and final term as governor next month, the 76-year-old Brown may eventually appoint all seven members of the state high court. The Rose Bird era of unrestrained activism may seem tame in hindsight.

This article was originally published by City Journal.