Dissenting in the same-sex marriage opinion last spring, the late Justice Antonin Scalia criticized his own court for being unrepresentative of America.
“Four of the nine are natives of New York City,” he wrote, and Scalia was one of them. The court, he moaned, had “not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count).”
The home state of majority opinion writer Justice Anthony Kennedy promptly protested that it did so count, as Western and otherwise. These days, judging by the names being floated as a possible replacement for Scalia, the country’s most populous state does indeed count – as a fount of judicial talent.
Though President Obama has dropped no hints, California’s state and federal judiciary is prominently represented among the rumored shortlist. Those names include young Ninth Circuit judges like Paul Watford and Jacqueline Nguyen, state Supreme Court justices like Mariano-Florentino Cuéllar, Leondra Kruger, and Goodwin Liu, and even California state attorney general and Senate candidate Kamala Harris.
“As California goes, the country eventually follows,” said UCLA law professor Adam Winkler. “As much as people like Scalia like to diss California, we’ve seen the state really be at the cutting edge of so many social changes and movements.”
David A. Carrillo, executive director of the California Constitution Center at Berkeley Law, agreed: “California is the tail that wags the dog on so many issues.”
All of these judges are all relatively young and pedigreed. Some are very young: Kruger, the first black woman to edit the Yale Law Journal, is only 39. None is white. Of the 112 justices who have served on the Supreme Court, only three have been people of color, something Obama would know as well as anyone.
All of the current justices previously served as appeals court judges, except Justice Elena Kagan, who never got a vote on her nomination to the D.C. Circuit by President Clinton. The Ninth Circuit Court of Appeals, which covers a vast territory that includes Alaska, Hawaii, and a swath of western states, is both large and prestigious, pointed out Melissa Murray, a Berkeley Law professor. She said California Senators Barbara Boxer and Dianne Feinstein’s input on lower-court appointments made a difference, too. “They’ve made a concerted effort to make sure that the Ninth Circuit reflects the diversity of the state,” she said.
Meanwhile, Governor Jerry Brown’s most recent appointments to the California Supreme Court have stood out for their national profiles. Cuéllar and Kruger, who each joined the court in January 2015, both worked in high-level legal positions in the Obama administration. Liu, who is a long shot due to the Republican-led Senate’s long-running refusal to bring to a vote his nomination to the Ninth Circuit by Obama, was a prominent voice on progressive issues as a professor at Berkeley Law.
“Jerry Brown has appointed a crop of young intellectuals,” said Jessica Levinson, a professor at Loyola Law School in Los Angeles. “These are people who have not necessarily had any trial experience. They’re people who look like they’re federal court-ready. And it’s a group that are progressives, but there’s no indication that they’re as far to the left as Scalia is to the right. It makes sense that when you are thinking about how to diversify the court, you’re potentially tapping into California’s Supreme Court.”
No current justice served as a state court judge, though several from the last generation did: Justice William Brennan in New Jersey, his successor Justice David Souter in New Hampshire, and Justice Sandra Day O’Connor (whom Scalia might have considered a genuine Westerner) in Arizona.
Carrillo, for one, would like to see it happen again. “Speaking as someone who studies state constitutional law, it’s also important for the court to remember federalism,” he said. “The states are separate sovereigns in our system. If you have a bunch of federal law experts on the court and no one knows anything about state constitutions, it’s easy to lose that.”
Some legal experts have traced Kennedy’s libertarian views to his upbringing in Sacramento. “He is the most libertarian of justices, the most likely to vote against the government,” pointed out Winkler. But since the 79-year-old Kennedy left the state, Winkler argues, “The California mentality has changed a lot. It has moved away from the traditional western mentality. Californians tend to think more highly of big government than many other western states do.”
Still, maybe the famous swing justice would have extra sympathy for a Californian. As Murray put it wryly, “We are always thinking about how to resonate with Justice Kennedy.”