Liberal California Has Rare Chance to Adjust Its Republican-Appointed Supreme Court

Wednesday, February 19, 2014
Justice Joyce Kennard (photo: Getty Images North America)

Famously liberal California doesn’t have a single Republican statewide officeholder, and Democrats dominate both houses of the Legislature.

So it comes as somewhat of a surprise to the casual observer that six of California’s seven sitting Supreme Court justices were appointed by Republican governors. Last week, one of them, Justice Joyce L. Kennard, an appointee of Republican George Deukmejian, announced she would retire in April, giving Democratic Governor Jerry Brown an opportunity to influence the court.

The last time Brown had a chance to nominate a justice, in 2011, he picked Goodwin Liu to replace Carlos R. Moreno, who had been selected by Democratic Governor Gray Davis in 2001. Liu’s selection to the sole seat held by a Democratic appointee caused distress in conservative circles. The University of California, Berkeley law professor had been successfully filibustered by Republicans in the U.S. Senate when President Barack Obama nominated him for a spot on the U.S. Ninth Circuit Court of Appeals.

Gerald F. Uelmen, a professor at Santa Clara University School of Law, says, “With each new appointment, the dynamic of the entire court changes.” If Court Watch’s assessment of Kennard is correct, that change could be pronounced. They called her “possibly the most individualistic justice on the Supreme Court.” Her alumni profile at University of Southern California Gould School of Law describes her “legacy of dissent and championship of liberal-leaning causes.”

The liberal Liu joined a court generally regarded by liberal folks as right-leaning centrist and by conservatives as beyond-the-pale left. It is not an easy thing to measure. Justices form different coalitions around different issues, and being conservative in California is different than being conservative in Alabama.

Political science professors Adam Bonica and Michael Woodruff took a different path to ideological enlightenment about the California Supreme Court and other high courts in the country.

They followed the money.

In a white paper (pdf) released in October 2012, “State Supreme Court Ideology and ‘New Style’ Judicial Campaigns,” the authors measured the partisanship of the justices by computing “campaign finance scores” (Cfscores) based on political contributions made by, and to, the justices from 1990 to 2008. If a justice was appointed and there was no campaign, the ideology of the appointing governor or Legislature was factored in. A score of zero ranks as nonideological; above 1.0 is very strong conservative, -1.0 is strong liberal.

The professors’ methodology is spread out across 57 pages in a dense array of formulae and scientific jargon that is not easily accessible, but the list of the country’s Top 10 most conservative high courts probably passes a gut check—South Dakota, North Dakota, Texas, Alabama, Idaho, Mississippi, Ohio, Florida, South Carolina and Utah.

Those top eight states qualify for the rank of “Strongly Conservative.”

California is the 14th most liberal high court on the list, with a score solidly in the middle of “Leans Liberal.” Just three of the justices, Carroll Corrigan (0.55), Marvin Baxter (0.48) and Kennard (0.34) scored conservative. Liu replaced the most liberal justice at the time, Carlos Moreno (-1.52), who was followed by Ming Chin (-0.97), Chief Justice Tani Cantil-Sakauye (-0.62) and Kathryn Werdegar (-0.49).  

New Mexico checks in at Number One, followed by Maine, Oregon, New Hampshire, Washington, Montana, Vermont, Rhode Island, Arkansas (yes, Arkansas) and Maryland. The top eight rank “Strongly Liberal.”

When Professor Uelman analyzed the California Supreme Court’s record between July 1, 2011, and June 30, 2012, he made much of its unanimity. Seventy-five of 86 published cases were unanimous decisions. Liu, who had been characterized as a left-wing loony during his nomination for the federal post, has fit in very well with the state court.

“The only fault line remaining seems to be the one that separates Justice Kennard from the rest of the court,” Uelman wrote.

–Ken Broder


To Learn More:

Gov. Jerry Brown Puts Deep Imprint on California Judiciary (by Howard Mintz, San Jose Mercury News)

Joyce Kennard to Retire from California Supreme Court (by Bob Egelko, San Francisco Chronicle)

A Conservative’s Worst Nightmare: Justice Goodwin Liu? (by David Lat, Above the Law)

New Balance at the California Supreme Court (by Gerald F. Uelmen, California Lawyer)

The CA Supreme Court Reviewed (by Gerald F. Uelmen, California Lawyer)

State Supreme Court Ideology and “New Style” Judicial Campaigns (by Adam Bonica and Michael Woodruff) (pdf)

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