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On the California Supreme Court, Leondra Kruger is known for her ‘persuasive powers’ among the justices

The potential Supreme Court nominee is often described as that court’s fulcrum with a talent for building majorities

Leondra Kruger, an associate justice of the California Supreme Court. (Jeff Chiu/AP)

SAN FRANCISCO — Shortly after Leondra Kruger took her seat on the California Supreme Court in 2015, she faced a test that would define the way she has approached the appellate bench, political ideology and the law.

Then-Gov. Jerry Brown (D) was seeking to build a lasting liberal majority on the seven-member court. He plucked Kruger from the Justice Department in Washington. From Stanford Law School, he chose Mariano-Florentino Cuéllar. The two were greeted warmly by California liberals when they took their seats.

Within months, Kruger had confounded those same supporters.

The rules of the California Supreme Court allow new justices to vote on so-called rehearing petitions in some instances, even if they did not sit on the original cases. Kruger and Cuéllar had a handful to consider. They agreed to rehear a death penalty case that the court eventually overturned.

Kruger, however, did not vote with Cuéllar to rehear another case that was important to California’s gay and lesbian community. The case involved inconsistencies regarding when someone convicted of a sex crime had to join the sex-offender registry, a tangle of rules that many legal observers said were rooted largely in decades-old homophobia.

The case, known as Johnson v. Department of Justice, was not reheard in large part because of Kruger’s vote.

“I don’t think it had anything to do with her necessarily believing the prior court decision was correct,” said David Ettinger, a semiretired California litigator who argued more than a dozen cases before the California Supreme Court and now writes the highly respected blog, “At the Lectern.” “But what it did show was that she wanted to use the rehearing petitions very carefully.”

Potential Supreme Court nominee faces questions on religious rights case

The early test for Kruger on this state’s highest court captured the two sides of a jurist described at nearly every turn as a brilliant legal mind. There is her prevailing liberal outlook on many issues important to Democrats. Then there is her conservative approach to the courts — venues to interpret, not make, policy or the law. She may be liberal, but she is not an activist.

That may pose a challenge for President Biden, who will be making a Supreme Court choice in an important election year. With his domestic policy agenda flagging, Biden is being counted on by supporters to pick a future justice who will excite Democratic voters. Kruger, while liberal in outlook, would not be an ideological choice, given her interest in procedure, precedent and ensuring that the public has faith in the way the law works.

“She’s kind of a law nerd,” said a longtime California Supreme Court watcher who supports Kruger for the highest court and spoke on the condition of anonymity to be more candid. “She is not driven by ideology but by trying to find the right answer under the applicable legal framework.”

Her allies, however, say Kruger would bring a collegiality and high-skilled persuasiveness to the high court, a liberal outlook on issues most important to Democrats, but also a fear of court overreach that has marked her out among some of her current state justice colleagues. Some of her supporters compare her to the justice she would replace, Stephen G. Breyer, because she is a consensus builder. Others compare her to Elena Kagan, a mentor of sorts to Kruger and one of the court’s most compelling liberal voices.

“She is not someone who would shy away from a decision that would be seen as politically liberal,” said Theodore J. Boutrous Jr., a partner with Gibson, Dunn & Crutcher, who has argued about a half-dozen cases before Kruger. “But she is very respectful of the rule of law and the mix of opinions and precedents that establish that factor into every decision.”

Kruger, who is 45, would become the youngest current member of the Supreme Court if Biden chooses her. She is the only one from the West, where she lives a happy, farmers-market-on-the-weekends kind of life in the East Bay with her husband, an attorney, and their two young children.

It is not a life she would leave for just any job, her friends and colleagues say.

She has reportedly turned down twice the Biden administration’s offer to be solicitor general, an office she worked in during the Obama administration with Kagan, an unabashed advocate for Kruger during her selection for the state Supreme Court.

The accolades abound from other colleagues, friends and those who have appeared before her in court. One close state Supreme Court watcher said that there is a sense during a court hearing that the whole room, fellow justices included, are “waiting for when Leondra asks her first question or comments.”

She rarely speaks first or for long. But, according to several former colleagues and lawyers who know her, it often crystallizes the legal issues involved in the case or takes arguments in new directions. Lawyers appearing before the court often double back during their presentations, saying, “I want to return briefly to Justice Kruger’s question, if I may.”

“She’s the one who lawyers really want to make sure that they have fully answered her question — I know I have done it,” Boutrous said. “Everybody knows the kind of persuasive powers she has with the other justices.”

From its first few entries, Kruger’s résumé charts a path toward the nation’s highest court.

She was raised in the Pasadena area, a part of the San Gabriel Valley east of Los Angeles that mixed old California money with new high-achieving immigrants. Kruger’s parents were both doctors. Her mother, a Jamaican immigrant, was a pediatrician. Her father, also a pediatrician, was the son of Jewish immigrants from Eastern Europe.

Kruger attended Polytechnic High School, just across from the California Institute of Technology campus. The school is small, private and prestigious. Among her school mates was James C. Ho, a judge on the U.S. Court of Appeals for the 5th Circuit who was on President Donald Trump’s shortlist for a Supreme Court seat.

“Leondra, a sophomore when we were seniors, was as cool and calm as Jim was hot and polarizing,” wrote Joe Mathews, a prominent California journalist who worked on the school paper, the Paw Print, with both future jurists. “She could be funny and gossipy with friends, but she chose her words with great care, which made you listen more closely.”

Kruger went on to Harvard, where she volunteered at a student-run homeless shelter, tutored in the Boston community and wrote for the Crimson, including stories on affordable housing, affirmative action and the 1994 U.S. Senate race. Showing her California pride, she published a travelogue piece that attributed the much-hyped fears over earthquakes, fires, mudslides and riots in her state to East Coast jealousy.

After graduating magna cum laude, Kruger went on to Yale Law School, where she became the first Black woman to edit the prestigious Yale Law Journal.

After a series of summer law internships, Kruger began a one-year clerkship with Judge David Tatel, who sits on the U.S. Court of Appeals for the District of Columbia Circuit.

Once the clerkship ended, Tatel recommended her to then-Supreme Court Justice John Paul Stevens, the Gerald Ford appointee who served on the high court for 35 years. He brought Kruger on as clerk, a capstone in an appellate court apprenticeship.

Kruger finished her year-long clerkship, then spent two years at the Wilmer Cutler Pickering Hale and Dorr law firm in Washington before accepting a visiting lecturer position at the University of Chicago Law School.

She returned to Washington to join the Obama administration’s Office of Solicitor General, which argues the government’s cases before the U.S. Supreme Court. Kruger would do so a dozen times — one religious rights case has prompted questions during the selection process — before leaving to join the Justice Department’s Office of Legal Counsel.

As a deputy assistant attorney general there, Kruger was a key player in an office that supplies legal advice to the president and other branches of the federal government. It has also been a key stop along the way for other, more conservative Supreme Court justices, including the late Justice Antonin Scalia and the late Chief Justice William H. Rehnquist. Before leaving the Justice Department, she received awards for her work in helping strike down the Defense of Marriage Act, which defined marriage on the federal level as a union between man and woman, and for upholding the Affordable Care Act, or Obamacare.

It was in that office that then-Gov. Jerry Brown’s legal advisers identified her as a possible California Supreme Court justice. She was officially nominated by Brown in 2014, and then 38, she was among the youngest to be nominated to the state’s highest court in California history.

The selection proved to be an uncomplicated one, if a little surprising to some here.

Kruger had never practiced law in California and never served as a judge. On her questionnaire for the job, she acknowledged that she had never taken a deposition and that, “I have not tried any cases to verdict or judgment.” Nearly all of her private legal work had been in civil litigation.

While there was some skepticism at the time over Kruger’s state experience, the California State Bar’s evaluating committee gave her its highest endorsement, “exceptionally well-qualified.” Her confirmation hearing lasted less than an hour, and not a single critic spoke publicly.

According to several people involved, Brown was impressed by Kruger’s record (both had attended Yale Law) but also her glowing references from Kagan, whose work on the bench he admired. Another supporter was then-California Attorney General Kamala D. Harris (D), who in that role had a vote on her confirmation.

“I originally entered the legal profession because I was drawn to the idea of grappling with difficult questions not merely for their own sake, but because their resolution matters — often profoundly so — to people’s lives,” Kruger wrote in her application, in which she described herself as “fairly even tempered and low key.”

“I would work with my colleagues to ensure that our decisions explain our reasoning in a way that provides adequate guidance for future litigants and lower courts,” she added.

Brown envisioned Kruger as a third member of a growing, solid liberal core, joining Cuéllar and Justice Goodwin H. Liu, a Yale Law School graduate who had been on the bench since 2011. He is considered the most liberal justice on the court.

At the time, Kruger was the mother of one young child, a son. A little more than a year after her swearing-in, she would have a daughter, becoming the first sitting California Supreme Court justice to give birth in office.

The California Supreme Court is a collegial one. There are few sharp elbows or split opinions. Kruger is sometimes called a “swing vote.”

But David Carrillo, executive director of UC at Berkeley Law’s California Constitution Center, uses the term “median justice” to describe her place on the spectrum.

“Our substantive review shows that Justice Kruger in general reaches results that are evenly distributed among liberal and conservative positions, and that those results flow from a neutral approach to reading the law,” the center wrote in a data-driven assessment of Kruger’s judicial philosophy. “Our quantitative analysis similarly negates a conclusion that Justice Kruger is a liberal or a conservative justice — she can be both, or neither.”

Last month, the court ruled in a death penalty case where Kruger joined the majority in overturning a previous court ruling. But she also wrote a separate opinion that revealed a certain precision — or a way of having it both ways, to some critics — in how she interprets the law.

The 1993 case involved a triple murder in Pasadena where three boys were fatally shot. At the subsequent trial, three suspects were forced to wear “stun belts” during appearances in the courtroom. The belts produce an electric shock and are supposed to be used in courtrooms only if defendants pose a particular threat.

The plaintiffs argued that their trials were prejudiced by having to wear the belts, even though they were hidden from sight and the jury was not made explicitly aware of them. In a 6-to-1 decision, the court upheld the death penalty.

But Kruger filed a separate opinion, siding with the majority but taking issue with the court’s use of the stun belts, which she argued the lower court never gave a convincing reason why they were necessary. It was a way of being conservative and liberal at the same time.

“The law required a finding of manifest need for restraints based on record evidence, and in each case the trial court ordered the restraints without either making explicit findings or making implicit findings that are discernible on this record,” Kruger wrote.

“While the errors may not have been prejudicial under our precedent, I would forthrightly acknowledge that the trial court did not make an adequate record to justify the use of restraints at the penalty phase of this trial,” she added.

The California Constitution Center’s assessment concluded that “in non-capital criminal matters, Justice Kruger is somewhat more likely to favor the defendant.”

Some of her colleagues, past and present, say she pays particular attention to individual rights. In a 2019 opinion, Kruger wrote for the majority that a white supremacist, convicted of a double murder, should be granted a new trial because prosecutors used the defendant’s tattoos and political beliefs as a way to inflame the jury rather than as evidence.

Kruger also joined a majority opinion that upheld the abolishment of cash bail in California, a practice the justices called unconstitutional because it equates the level of freedom with the means to pay for it.

But in 2018 she joined a rare, divided court in upholding the constitutionality of a California voter initiative that required police to collect DNA samples from anyone arrested for a felony. Kruger wrote the 4-to-3 majority opinion in People v. Buza, which some legal scholars in the state called an example of the justice’s “incremental approach” to the law.

The case was closely watched at the state and federal level by civil liberty advocates. It also drew two strident dissents from Liu and Cuellar, the latter of who left the bench last year to run the Carnegie Endowment for International Peace. In his 32-page dissent, Cuéllar argued that the California Constitution’s privacy rights, which do not exist in the U.S. Constitution, made the automatic DNA collection illegal.

The ruling overturned a decision by the California Court of Appeals, which said it violated California’s search and seizure laws. J. Anthony Kline, the recently retired presiding judge, was in the majority on the appeals court. But he said Kruger’s opinion was narrow in scope and modest in tone, which softened the sting of the reversal.

“I thought it was a carefully reasoned opinion and, without getting into the weeds on this, I found it very thoughtful,” Kline said.

Kruger has been equally hard to pin down — in her rulings — on the death penalty, which is suspended indefinitely in California. The last person put to death here was in 2006. As much as on any issue, Kruger appears to hold a one-at-a-time approach to capital punishment, never signing on to arguments that it is unconstitutional.

In a 2019 ruling, Kruger joined a majority opinion upholding the death penalty in the case of a brutal double murder of an elderly couple in Hanford, Calif.

But she did not join a concurring opinion in the case, written by Liu, that, while expressing sympathy for the victims, called the death penalty “an expensive and dysfunctional system that does not deliver justice or closure in a timely manner, if at all.”

The following year she wrote the opinion for a unanimous court overturning the death penalty for Scott Peterson, who in one of the state’s most high-profile murder cases killed his pregnant wife, Laci, in 2002 and dumped her body in the San Francisco Bay.

Kruger wrote that the trial judge should not have automatically disqualified jurors who opposed the death penalty without also asking whether they could set those views aside. Peterson has since been resentenced to life in prison.

“She is more on the moderate side than other progressives on the court,” Kline said. “The person I would compare her to is Stephen Breyer. She really is the Stephen Breyer of the California Supreme Court.”

Kruger and her husband, the attorney Brian Hauck, live a quiet life in Oakland in an area one friend described as “a kind of re-creation of our Washington neighborhood but in California.” There are former Justice Department and other Obama administration officials nearby.

Kruger and Hauck take turns bringing their elementary-age children to their public schools — one dropping off, one picking up. Friends say the parents encourage the children to explore what they want, which at the moment includes fashion and computer programming. Kruger still reads them Harry Potter books, although the inside joke is they may be a tad old for that now.

She has a big laugh.

One neighbor is Kathleen Hartnett, who formerly worked in the Obama White House Counsel’s Office and also clerked for Justice John Paul Stevens. Hartnett has two children, a little younger than Kruger’s, and is a partner in a San Francisco law firm.

There is an in-it-together camaraderie in the neighborhood — regular pizza night with the children, offers to babysit or run an errand to the grocery store, kid-clothes hand-me-downs from Kruger for her younger kids.

When Hartnett’s first child was an infant, Kruger offered to babysit so that Hartnett and her wife could have a break.

“I came home, and she had put our daughter to bed smoothly after they spent time playing and reading together on the couch,” Hartnett said. “I think she understood we needed a little time out together.”

As for her colleagues on the court here should she leave? Carrillo said, “They will be happy for her but very sad to lose her.”

“There will be crying in the halls,” he added.