Once upon a time, Americans held seasoned judges and legal practitioners in esteem. Lewis Powell, Henry Friendly, Louis Brandeis, and Charles Evan Hughes were all accomplished lawyers in private practice before they served on the bench. Representing clients in the real world tends to instill an appreciation for the rule of law. Today, by contrast, a Yale law degree, a prominent post in a Democratic presidential administration, and a desire to place one’s hands on the levers of judicial power are the tickets to a seat on the California Supreme Court. Governor Jerry Brown’s choice of 38-year-old Leondra Kruger to replace veteran jurist Joyce Kennard reinforces the trend. Kruger has never practiced law in the Golden State.
California law is vast and complex, and the state Supreme Court is its final arbiter. Unlike Kennard, who served at every level of the judiciary before being elevated to the Supreme Court in 1989, Kruger has never donned the black robe. As with Brown’s two prior appointments to the court, fellow Yale law grads Goodwin Liu and Mariano-Florentino Cuéllar, Kruger lacks private-sector legal experience, too. Presumably, she will learn on the job.
Kruger’s nomination is remarkable for other reasons. If confirmed by the state’s Commission on Judicial Appointments, she would be the youngest person ever appointed to the state’s highest court. She barely meets the state constitutional requirement that judges be members of the state bar for at least ten years. Referring to Kruger’s youth and inexperience, law professor and commentator Gerald Uelman called her appointment a “mind-blower.” And not that anything is wrong with Yale, but couldn’t the governor have found a qualified nominee from Stanford, Berkeley, UCLA, or some other California law school?
Brown is a pioneer in “judicial diversity.” In two stints as governor, he has appointed blacks, gays, Muslims, women, and other previously under-represented groups. But his selection of three Ivy League-educated lawyers with no meaningful private-practice experience to serve on California’s highest court is unprecedented. These appointments will transform the state’s judiciary for decades to come.
No one questions Kruger’s intelligence. She was editor-in-chief of the Yale Law Journal and clerked on the U.S. Supreme Court. She worked briefly at two law firms in Washington and taught for a year at the University of Chicago. She spent the past eight years working in various positions at the U.S. Department of Justice. But she is plainly too inexperienced to serve on California’s Supreme Court.
Service as a trial-court judge has long been considered an essential prerequisite for appointment to the appellate bench. With his last three appointments to the California Supreme Court (and the recent appointment of Therese Stewart to the First District Court of Appeal), Brown has discarded that standard. Prior experience as a trial judge is more than a mere matter of custom or an outmoded artifact of the past. Appellate judges play an important but limited role in our system of government. The legislature passes laws, juries decide facts, trial judges apply laws to the facts, and appellate judges interpret the laws. When these roles get confused, bad things happen: laws get ignored, judges legislate from the bench, and appellate judges usurp the fact-finding function.
Serving as a trial judge provides a critical measure of humility for bright, politically connected lawyers who happen to be appointed to the appellate bench. It also reinforces the narrow role that wearing a black robe implies. The tendency toward judicial activism is greater for younger appointees because law schools have become increasingly politicized and the dominant philosophy of “legal realism” encourages recent graduates to view the law as a malleable instrument to accomplish politically desirable ends.
Kruger’s lack of private-practice experience is also troubling. She has worked mainly in the area of “public law,” representing the federal government in matters involving the projection of federal power. Liberty—or autonomy—is the absence of government power. In a civil society, free citizens organize themselves primarily through “private law” mechanisms—consensual contractual arrangements; the formation and operation of privately owned businesses; lending and borrowing money; and so forth. The laws governing these activities—contracts, real property, corporations, secured transactions, negotiable instruments, intellectual property—are the mainstay of lawyers in private practice and grist for a free market economy. Lawyers unfamiliar with the area of “private law,” if appointed to the bench, tend to be unsympathetic to the vital importance of such voluntary arrangements.
The vanguard of young, Ivy League-educated, activist-minded judges Brown is appointing to the California Supreme Court is not “diverse” at all. Sure, they represent different ethnicities and races, but they’re all Yalies and liberal Democrats, with no signs of respect for judicial restraint. One of the cases Kruger argued before the U.S. Supreme Court was Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, where she advocated overturning the long-recognized “ministerial exception” to anti-discrimination laws in order to expose religious organizations to liability for their hiring and firing decisions involving ordained personnel. In 2012, the U.S. Supreme Court rejected Kruger’s radical position unanimously.
Beginning his fourth and final term as governor next month, the 76-year-old Brown may eventually appoint all seven members of the state high court. The Rose Bird era of unrestrained activism may seem tame in hindsight.