PD Editorial: Gov. Brown reshapes high court — again

Jerry Brown’s first turn as California governor produced some epic controversies, none larger than his effort to reshape the state Supreme Court.

Brown introduced diversity to the court, appointing the first woman, the first African American and the first Latino justices. His successors have added to the court’s ethnic and gender mix, and, governors (and presidents) now routinely consider gender and ethnicity in making judicial appointments.

But Brown’s early choices, especially Chief Justice Rose Bird, sparked an unprecedented political battle, fueled by the court’s handling of death penalty cases.

In 1986, voters unseated Bird and Associate Justices Cruz Reynoso and Joseph Grodin after an expensive and divisive campaign. (Brown’s other appointee, Wiley Manuel, died in office.) The court has been dominated by justices appointed by Republican governors ever since.

California’s death penalty is still unsettled, but that battle has largely moved into the federal courts. And, almost four decades after making his first appointments, Brown is again reshaping the state Supreme Court. This time, he’s doing so without much uproar.

His first appointment was Godwin Liu, a nationally renowned legal scholar. Brown made his second appointment this week, choosing another nationally recognized legal scholar, Stanford law professor Mariano-Florentino Cuellar.

Like Bird and Grodin, they lack prior judicial experience. But their academic standing brings intellectual firepower to a court that used to be among the most influential in the nation, its opinions shaping rulings in other states and the federal courts.

There’s still one more vacancy to be filled, and Brown’s choice could shift the court’s majority away from the conservative justices, most of whom were promoted from lower courts.

“Judges who come off the courts of appeal are into a kind of culture of affirmance,” Santa Clara University Law School dean Gerald Uelman told the Los Angeles Times. “They may regard issues as well settled even though we should be taking another look. That is where academics shine - in identifying areas that are ripe for change.”

The generally positive reaction to Brown’s nominees can be attributed in part to a more mature governor, less intent on making bold statements and upsetting the status quo. It also reflects the political changes that have taken place since 1977, when Republicans still dominated the statewide electorate and women and minorities seldom got picked for top government jobs.

At the time, Brown was just the state’s second Democratic governor in the 20th century; given present trends, it’s anyone’s guess when California will have its next GOP chief executive.

There are, of course, political considerations with these powerful appointments.

Brown is responding to his Asian and Latino constituencies’ desire for representation on the court. Liu was only available because U.S. Senate Republicans stalled his confirmation for the Ninth U.S. Circuit Court of Appeals, largely due to the possibility that a Democratic president would place him on the U.S. Supreme Court. And Cuellar’s immigrant background hasn’t endeared him to some of the nativists calling for tighter borders.

But the focus should be on Cuellar’s credentials, as a law and political science professor, his experience as a special assistant in the White House on justice and regulatory policy, his leadership of the Constitution Project, a nonpartisan group seeking consensus on constitutional issues, and his all-American story: walking across the border to attend elementary school in Brownsville, Texas, graduating from Calexico High School, Harvard and Yale law school and a clerkship on the 9th U.S. Circuit Court of Appeals.

With the addition of Cuellar, Brown is pointing the court in a positive direction. The state’s judicial appointments commission should quickly ratify his nomination, and voters should do the same on Nov. 4.