Newsom may get chance to remake state Supreme Court

Four candidates are leading in the behind-the-scenes battle of a vacant state Supreme Court seat, but the race has been complicated by the possibility that Justice Leondra R. Kruger might be nominated to the U.S. Supreme Court.

President Joe Biden has promised to choose a Black woman by the end of the month to replace U.S. Supreme Court Justice Stephen G. Breyer. Kruger is one of the leading candidates. Kruger may not be chosen, but attorneys familiar with the process say Gov. Gavin Newsom could postpone his decision both to avoid having his selection be overshadowed by Biden's and so he knows how many vacancies he needs to fill.

Attorneys familiar with the process say the leading candidates are 4th District Court of Appeal Justice Patricia Guerrero, a former Latham & Watkins LLP partner; U.S. District Judge Yvonne Gonzalez Rogers of Oakland, known recently for her ruling in the NCAA antitrust case; Public Counsel CEO Mónica Ramírez Almadani, a former American Civil Liberties Union lawyer who worked in the U.S. Department of Justice's civil rights division during the Obama administration; and 3rd District Court of Appeal Justice Elena J. Duarte, a former federal prosecutor.

Newsom's choice will replace Justice Mariano-Florentino Cuéllar, who announced his departure last September to become president of the Carnegie Endowment for International Peace.

Attorneys familiar with the process say Cuéllar's replacement will be a Latina, as Cuéllar was the only Hispanic on a court in a state that is 40% Hispanic. The court has never had a Latina justice.

Paul Barragan-Monge, director of mobilization at the UCLA Latino Policy and Politics Initiative, said his organization has pushed for candidates with civil rights backgrounds. "Any of the women we recommended would bring tremendous value to the bench," he said.

This will be Newsom's second nominee to the state Supreme Court. He chose Justice Martin J. Jenkins, who had experience as a federal judge and state Court of Appeal justice, in 2020.

If Biden nominates Kruger to the U.S. Supreme Court and she is confirmed, Newsom would get a third choice for the seven-member court.

Brown, who served a total of four terms as governor, appeared to have selected a group of four young, Ivy League-educated attorneys who could serve on the state Supreme Court for decades.

Cuéllar's departure, the possible ascension of Kruger to the U.S. Supreme Court, and the restlessness of Justice Goodwin H. Liu -- who tried unsuccessfully to persuade Newsom to appoint him as attorney general last year -- raises doubts about Brown's long-term impact on the court.

"Rising stars will rise. They may not stick around," said David A. Carrillo, executive director of UC Berkeley School of Law's California Constitution Center. "The Brown court could soon become the Newsom court."

Brown kept his own counsel, and none of his state Supreme Court nominees had judicial experience when he picked them. Kruger, Liu and Cuéllar all went to Yale Law School, from where the former governor also graduated. Justice Joshua P. Groban graduated from Harvard Law School.

Newsom has a more traditional, open process, and he is much more likely to promote judges from within. The fact that the governor's father is a former state appellate justice may play a role, attorneys said. He also has a reelection campaign to worry about and key Democratic interest groups to satisfy, or at least avoid upsetting.

The state Supreme Court is a strikingly harmonious group, and there are few dissents, much less 4-3 votes.

David S. Ettinger, of counsel at Horvitz & Levy LLP, said the Brown appointees never really voted as a group and could think of only one or two cases in which they voted together in a 4-3 outcome.

"Brown's appointees have never consistently voted as a bloc," Carrillo said.

The impact of additional departures from the state Supreme Court in the coming months or years may not affect its jurisprudence all that much unless a Republican becomes governor, attorneys said.

Chief Justice Tani G. Cantil-Sakauye and Justice Carol A. Corrigan are both appointees of Republican Gov. Arnold Schwarzenegger. Both chart a moderate course, although they are more conservative on some criminal justice issues.