US high court appointment observers say Kruger's state court chops set her apart

Of the names being mentioned as possible replacements for the retiring U.S. Supreme Court Justice Stephen Breyer, one possesses unique career experiences the high court needs right now, according to some legal observers.

Justice Leondra Kruger of the California Supreme Court has a blend of experience on the state high court and federal practice no other current Supreme Court justices has. She also comes from the American West, while most of the other justices hail from the East Coast.

"Justice Kruger is the only candidate who combines federal law practice with state bench experience," David A. Carrillo, executive director of Berkeley Law's California Constitution Center, said in an interview Wednesday. "State court service was once a hallmark of high court justices, but just a handful since 1950 came from state courts and no sitting member has that background."

Carillo, who co-authored a paper last summer that outlined Kruger's unique qualities for the nation's highest court, noted state law issues and federalism disputes frequently appear on the Supreme Court's docket.

"Someone with experience like Justice Kruger's is best suited to balance competing state and federal interests," he said.

Breyer is expected to announce his retirement from the U.S. Supreme Court tomorrow at a ceremony at the White House, ending 27 years on the nation's highest court. The field of his potential replacements is already narrowed. President Biden said he intended to fulfill a campaign promise of placing a Black woman on the court.

Among those being mentioned are Judge Ketanji Brown Jackson, who was successfully confirmed by the U.S. Senate last year to the U.S. Court of Appeals for the D.C. Circuit, and Judge J. Michelle Childs, who sits in the U.S. District Court in South Carolina.

Kruger, who grew up in Pasadena and went to Yale Law School, served as a deputy solicitor general under President Obama and argued 12 cases before the U.S. Supreme Court.

Mary-Christine "M.C." Sungaila, an appellate lawyer at Buchalter, agreed the nation's high court could benefit from a justice with state court experience. She pointed to a case from the Central District of California that went before the U.S. Supreme Court last week, in which a choice of law doctrine became a key issue. Cassirer v. Thyssen-Bornemisza Collection Foundation, 862 F.3D 951, 973 (9th Cir. 2017).

"The question was how do we acknowledge that interplay between the state and federal systems?" Sungaila said.

Several lawyers also talked about other qualities they believe the next justice will need: in short, a mix of left-leaning legal jurisprudence to counter the six conservatives on the court but also an ability to forge agreements with them.

"Thank goodness, I think, is the overriding thought that a lot of folks have who would like to see a continuation of some type of balance on the Supreme Court between left-leaning and right-leaning justices," Ben Feuer, chairman of the California Appellate Law Group, said after learning of Breyer's retirement.

Feuer said he believes Kruger, who he described as having an "approach to judging in a thoughtful and balanced rather than reflexive or extremist" manner, is an excellent fit.

U.S. District Court Judge Vince Chhabria clerked for Breyer from 2001-2002. He declined to weigh in on potential replacements, but he said Breyer has built a potent legacy.

"I think one of his big picture contributions has been serving as a counterpoint to Justice Antonin Scalia," Chhabria said. He recalled fondly how Scalia and Breyer would go on "roadshows" to law schools and legal organizations, jousting over their approaches to the law.

"Justice Breyer emphasizes that yes, you have to look at the language of the statute, but you can't just look at it in isolation," Chhabria said. "You have to think about the consequences of legal analysis for actual human beings. You have to understand that the law needs to work for ordinary people, and the law should not put obstacles in the way of public officials attempting in good faith to solve society's problems. If a court ruling interferes with those goals, maybe there is something wrong with the law."

Sungaila said whoever is nominated, one thing is for sure: the entire court will change.

"Whenever you change one member of any multiple-party bench, the changes are more than just that one person," she said. "The whole complexion will change, and we won't know the impact until the replacement is there, and we witness the dynamics."