With left-leaning Supreme Court Justice Stephen Breyer retiring even as conservative members of the court are poised to strike down Roe v. Wade, Democrats expect President Biden to nominate a Breyer replacement who will counterbalance the right-wing trio of Trump appointees Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.
However, one jurist on Biden’s short list, California Supreme Court Justice Leondra Kruger, might not check every box on liberal wish lists.
If nominated and confirmed, Kruger, 45, would be the first Black woman on the Supreme Court, fulfilling a Biden campaign promise. But, as the New York Times reports, Kruger is also known for being as centrist as Biden himself, a “consensus builder” whose rulings have at times shocked her California colleagues, and whose inexperience when she was nominated to the state’s high court led one judge to call it “a slap in the face.”
On the other hand, some see Kruger as the kind of moderating influence that a country being potentially torn apart by a comedy podcast could really use right now.
Before Kruger’s arrival in 2014, the California Supreme Court had been infamous for its partisanship. Since her unanimous approval for the job—by a confirmation panel that included then-attorney general Kamala Harris—the court has voted unanimously in nearly nine out of every ten decisions.
That court has also shifted from right to left during Kruger’s tenure. David A. Carrillo, executive director of the California Constitution Center at U.C. Berkeley, tells the Times that Kruger has been “a key factor” in that change, who has worked with her fellow justices to arrive at decisions more in keeping with letter of the law than ideology.
Carrillo adds that Kruger rarely dissents, “and when she does it’s usually to argue that the court has gone too far.”
Some of Kruger’s decisions will likely receive heavy Democratic scrutiny if she ever gets a Senate confirmation hearing. In 2018, she was the decider in a 4-3 ruling in which she joined the Republican-appointed justices in upholding a California law requiring felony arrestees to surrender DNA samples before they are convicted of any crime. The dissenting justices called the law an unconstitutional “biological dragnet.”
One dissenter blasted the majority opinion—penned by Kruger—as being “in tension even with its own logic.” Another warned that, with Kruger’s opinion as a staring point “it is not that far a step for the state to collect and retain DNA from law-abiding people in general.”
In that case, Kruger ruled that a DNA sample was legally obtained from a suspected arsonist, but did not address any larger Constitutional issues. Her defenders argue that by narrowly crafting her decision, she may have prevented SCOTUS from overturning it someday. That argument, too, will likely face considerable discussion if Kruger gets her day before the Senate.
California Court of Appeal Justice J. Anthony Kline says he still disagrees with Kruger’s thought process on the issue.
“Some may see what she did as a cop-out,” he tells the Times, “but others might see it as a pragmatic way to view the issue.”
Although Justice Kline thinks Kruger blew that call, he added, “If you test her in an argument, she doesn’t take you on in a confrontational way. Rather, she questions your premises, very kindly. She’s remarkably effective. And her relationships are good. She’s careful with people.”
On the personal side, Kruger was born and raised in California by a Black, Jamaican mother and white, Jewish father, both pediatricians.
Kruger’s friend of several decades, lawyer Kathleen Hartnett, says, “She’s not a fancy person. People here will socialize with her or talk to her at birthday parties and be surprised to later realize they were talking to a California Supreme Court justice.”
California Supreme Court Chief Justice Tani Cantil-Sakauye, who was appointed by Republican Governor Arnold Schwarzenegger, tells the Times, “She’s a consensus builder. Beyond her obviously glittering Ivy League education and her brilliant mind is this incredibly humble, self-effacing personality who is very persuasive in bringing groups together on different legal arcs.”