Jerry Brown's legacy at the high court

When Justice Kathryn Werdegar retires at the end of August, Gov. Jerry Brown will have the opportunity to appoint his 11th justice to the California Supreme Court. Already, he has appointed more justices than any governor in California history, surpassing the record previously held jointly by his father, Pat Brown, and Gov. George Deukmejian (eight each). But then Jerry Brown has had more time to devote to that project. Counting his first two terms in office, he is now on his fourth term, the longest serving governor in California history.

The sheer quantity of Jerry Brown's appointments suggests that he has already had a major impact on the institution, but obviously the number of appointments cannot tell the whole story. For one thing, there are variations in the length of service of particular justices. Justices appointed by Pat Brown, for example, included Stanley Mosk, who himself set a record for longevity (37 years) as well as Mathew Tobriner (19 years) and Raymond Peters (14 years), while of the justices appointed by Jerry Brown only two (Rose Bird and Allen Broussard) reached 10 years on the court. Moreover, neither the number of justices nor the number of years served necessarily translates into impact. Gov. Culbert Olson, for example, appointed only four justices, but one of these was Roger Traynor, whose influence on the development of law nationwide is legendary, and another was Phil Gibson, who as chief justice played a transformational role in shaping the California judicial system.

Perhaps more relevant to the evaluation of impact are studies which focus on the number of times a court's decisions have been followed by courts in other states. These show the California Supreme Court, over time, to be consistently in the lead, during the tenure of Jerry Brown as well as during the tenure of other recent governors. But there is one area in which Jerry Brown's judicial appointments can be evaluated on a basis more reflective of our state's demographic makeup - namely, its rich diversity.

Beginning with his first appointment, that of Rose Bird to be the first female chief justice in the country, through his appointments of Wiley Manuel, Allen Broussard and Cruz Reynoso during his first two terms, as well as his three most recent appointments, Goodwin Liu, Mariano-Florentino Cuellar and Leondra Kruger, Jerry Brown (along with other recent governors) has contributed to what is, in terms of gender and ethnic background, probably the most diverse court in the land. Such diversity on a court is more than a matter of symbol or political correctness. There are studies which show, and I can attest from my own experience, that diversity has an effect on the nature and quality of discussion which takes place within a deliberative body, enhancing understanding and empathy.

There are other kinds of diversity which are important as well, including the judge's prior career. While prior judicial experience should not be a prerequisite for service on the Supreme Court - indeed, some of our greatest judges (e.g., Roger Traynor) had no such experience - but prior judicial experience does provide a useful perspective for the bulk of the court's workload. At present, four of the seven justices (including Justice Werdegar) had prior judicial experience, and while the three most recent appointees have performed brilliantly, Justice Werdegar's retirement provides an opportunity for Brown to retain that balance. This state's trial and appellate courts have an abundance of talent to choose from.

Finally, Jerry Brown's appointments over the years have been in keeping with might broadly be characterized as a liberal tradition in the sense that the judges he has appointed have displayed a sensitivity to the impact that a court's decisions have upon real people, to the many inequities which exist in our society, and by their understanding of the effect that legal doctrine may have on the plight of the under-or unpresented. Such qualities are not the province exclusively of Democrats; indeed, Justice Werdegar, though appointed by a Republican governor, has written and joined many "liberal" opinions, including that of Chief Justice Ron George (also a Republican appointee) in the landmark decision upholding same-sex marriage under the California Constitution, so Brown's upcoming appointment will not necessarily move the court in a new direction. It can be expected, however, to build upon the California Supreme Court's already established reputation as a leader among our nation's courts, a reputation for which Jerry Brown deserves a good deal of the credit.