Guest Commentary by By Miriam Pawel
Jerry Brown’s first exposure to the complexity of judicial appointments came when the 27-year-old lived in the Governor’s Mansion and studied for the bar in 1965.
Late at night, after Governor Pat Brown went to bed, Jerry would peruse his father’s files. What stood out in the evaluations of prospective judges were the stark discrepancies. A judicial candidate who earned an A rating from Warren Christopher might be a C or D in the eyes of another rater more concerned with political realities than judicial temperament.
“That really struck me, that some people could be both a C and an A, depending upon what values you’re trying to maximize,” the governor told his Yale law school classmates at a 2014 reunion.
Only a decade after that epiphany, Jerry Brown was in a position to decide which values he would maximize as he reshaped the California judiciary. Now the longest-serving governor in state history, Brown will leave office soon having appointed more than 1,200 judges over a span of more than four decades—a number equal to three-quarters of all judges in the state.
In recent months, attention has focused on the vacancy on the California Supreme Court, a fourth appointment that will give Brown a majority on the seven-member court. But arguably, his broader, long-lasting impact will be in dozens of courtrooms across the state—a system with more than twice the number of judges as the entire federal judiciary.
The first time Brown took office as governor, in 1975, the state bench was overwhelmingly white and male. During his first year, half his judicial appointees were black, Mexican American, Asian American, or female. He appointed the first African American, the first Latino, and the first woman on the California Supreme Court.
Jerry Brown’s departure from his father’s practice of relying heavily on recommendations of the state bar association roiled the judicial establishment. “I am deeply concerned with the bitterness the Bar feels towards my son, the Governor,” Pat Brown wrote in 1978 to his son’s most controversial judicial appointee, Chief Justice Rose Bird.
In 1986, Bird and two other Brown appointees to the high court lost their seats when they stood for a retention election.
“I looked for some judges who would shake things up a bit,” Brown said at the Yale reunion, speaking on a panel. “As I get older, this is 50 years later, I am looking for more continuity. I give more weight to tradition and continuity and stability.”
Some things have not changed: Brown’s style, and his commitment to diversity. When the governor interviewed Goodwin Liu for an appointment to the California Supreme Court in 2011, he said he asked only one question: What is your theory of law?
Liu and Brown’s other two Supreme Court appointees, Mariano-Florentino Cuellar and Leondra Kruger, are ethnically diverse but share a common pedigree, all relatively young, stellar graduates of Yale Law School.
Brown’s effort to diversify the judiciary has been far less controversial the second time around, although the courts remain predominantly white and male. From 2011 through 2017, about 40 percent of the 451 judicial appointees were women, and about an equal percentage identified as Latino, African American, or Asian American.
That inched the total percentages of women judges up four percent to 35.5; the percentage of whites dropped five points to 67.5 percent. Among the recent appointments were dozens of firsts: an African American and a Latino on the Fifth District Court of Appeal; Filipino American judges in San Bernardino, Riverside, and Contra Costa superior courts; the first Latina judge in Riverside.
Amid speculation as to why he has waited so long to make his fourth appointment to the Supreme Court, the governor has said only that he does not want to rush. It’s a decision that will certainly shape how future historians evaluate the Brown era.
The governor’s reflection in 2015 when he swore in his last two Supreme Court appointees sounds oddly prophetic today, two years into the Trump administration: “What I’m looking for is insight and growing wisdom over time, so we can create a measure of harmony in what is a very conflicted society.”
Miriam Pawel is the author of The Browns of California: The Family Dynasty that Transformed a State and Shaped a Nation (Bloomsbury), firstname.lastname@example.org. She will be discussing her book from 11:30-1 on Wednesday at the State Library, 914 Capitol Mall. She wrote this commentary for CALmatters.