Restoring the rule of law in California

The retirement of Justice Joyce Kennard from the state Supreme Court, effective April 5, gives Gov. Jerry Brown the opportunity to appoint her successor. Who should he pick? I have a suggestion, which I share below, but first I want to make a few observations about the state of the legal system in California.

Although trained as a lawyer, Brown has always approached the judiciary as a social experiment. In his first incarnation as governor (1975-1983), Brown (who personally opposed the death penalty) appointed many judges who were opposed to capital punishment, even though at the time the Legislature and the public strongly favored it. Brown selected as his legal affairs secretary a fellow - J. Anthony Kline (1975-1980) - who was such an iconoclast and ideologue that later, while serving on the 1st District Court of Appeal, he faced disciplinary charges from the Commission on Judicial Performance for explicitly refusing to follow a directly controlling state Supreme Court precedent he personally disagreed with.

Among Brown's and Kline's most controversial appointments in Brown's first tour of duty was choosing the 40-year-old Rose Bird to be chief justice of the Supreme Court in 1977, despite the fact that she lacked any judicial experience whatsoever. Bird's tumultuous tenure ended in 1987, when the voters overwhelmingly (67-33 percent) threw her and two of her colleagues (Cruz Reynoso and Joseph Grodin) off the bench for an egregious record of judicial activism, including categorical opposition to the death penalty (she voted to overturn the death penalty in all 64 capital cases she heard while on the court).

Brown's dismal record on legal matters did not improve during his term as attorney general (2007-2011), when he refused to defend a state law by appealing the rogue decision of U.S. District Judge Vaughn Walker invalidating Proposition 8 (the 2008 measure that amended the state Constitution to preserve traditional marriage). Not only did Brown violate his oath of office - in which he swore to uphold the constitution of the state of California - he also betrayed his ethical duty as a lawyer to zealously represent the interests of his client: the state. As a result (and undoubtedly as intended), the U.S. Supreme Court in Hollingsworth v. Perry held that the ruling below must stand because the party with "standing" - the state of California - had not appealed. Brown's impudent refusal to follow the law deprived Californians of a hearing on the merits of Prop. 8 in the high court.

This is emblematic of an insouciant disregard for the rule of law. We are supposed to be a government of laws, not of men. The personal predilections of elected officials (and even judges) are supposed to yield to the terms of democratically enacted laws. Readers may complain that it is unfair to dredge up "ancient history" relating to events that occurred almost 40 years ago. Possibly, but even Brown's supporters state that his approach to judicial appointments hasn't changed over the years. For instance, referring to Brown's first terms as governor, Santa Clara University law professor Gerald Uelmen says that "I don't see a lot of difference. I think his objectives are very much the same."

This view is borne out by the candidate Brown chose to replace Justice Carlos Moreno upon his retirement in 2011. Harkening back to the Rose Bird precedent, Brown appointed Goodwin Liu, a young (40-year-old) academic with no judicial experience and very limited courtroom experience. Liu's left-of-center ideology was so pronounced that when he was previously nominated by President Barack Obama to the notoriously liberal 9th U.S. Circuit Court of Appeals, he was unable to obtain Senate confirmation. Thus, to fill the only other vacancy on the state Supreme Court during this tour of duty, Brown appointed a judicial novice deemed too liberal for even the 9th Circuit.

What kind of signal does this send? When the courts are overtly treated like political bodies, and judicial decisions transparently reflect the personal views of the judge(s) rather than neutral application of the law, the public loses respect for the legal system and litigants lose confidence in the fairness of the system. The "law" just becomes another branch of politics - an exercise of raw power. Moreover, the "ripple effect" of political correctness and judicial activism negatively influences (by unnecessarily politicizing) the organized bar, legal academia, and the even the policy-making branches of the bench. For example, the Supreme Court Advisory Committee on the Code of Judicial Ethics is currently considering an amendment to Canon 2C of the Code of Judicial Ethics that would prohibit a state judge from being an adult leader in the Boy Scouts of America, an outrageous infringement of the freedom of association recognized by the U.S. Supreme Court in BSA v. Dale in 2000.

What to do? Brown is a visionary who has proven his willingness to make bold decisions with symbolic significance. He appointed the first openly gay judge in the nation, the first openly lesbian judge, and so forth. In his current term, Brown has appointed a larger share of women, Latinos and African-Americans to the bench than any prior governor. Even the appointment of Liu was calculated to show that the independent-minded Brown was not intimidated by the Senate's failure to confirm Liu's nomination to the 9th Circuit. The goal here, however, is not to create "diversity" but to restore the rule of law. I suggest that Brown make a bold statement to appoint Kennard's successor. Kennard, originally appointed by Gov. George Deukmejian, will have served on the Supreme Court for 25 years. Prior to that, Kennard served on the municipal court, superior court, and Court of Appeal.

To replace Kennard, the court's longest-serving justice, Brown should appoint someone with substantial judicial experience, who has a reputation for fairness, and who has demonstrated extraordinary ability as a lawyer and a judge. One of the most respected judges in California, currently serving her second year as assistant presiding judge of the state's largest superior court (Los Angeles), fits that description: Judge Carolyn Kuhl. Kuhl has been on the superior court since 1995. Before that, she was a partner in the highly regarded law firm Munger, Tolles & Olson (1978-1981 and 1986-1995), with an intervening stint in the Reagan administration (1981-1986), and a clerkship with Judge Anthony Kennedy on the 9th Circuit. Kuhl, who serves on the Judicial Council, is widely considered to be the most capable trial court judge in California, who presides over the most complex civil cases, and invariably takes the bench better prepared than any of the lawyers in the courtroom.

Yet, despite a "Well Qualified" rating by the American Bar Association, Kuhl's 2001 nomination to the 9th Circuit by President George W. Bush was held up for brazenly partisan reasons, culminating with a Democratic-led filibuster in 2003. (Harry Reid notwithstanding, both parties are guilty of blocking judicial nominees in this fashion.) In the face of implacable (albeit baseless) opposition, Kuhl withdrew her nomination in December 2004. By appointing Liu to replace Carlos Moreno, Brown has already shown that he is not constrained by U.S. Senate politics in making appointments to the California Supreme Court. If Brown wants to select a proven jurist with a sterling reputation, he should appoint Carolyn Kuhl.