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Leondra Kruger, a star on California's high court, is on Biden's Supreme Court list

California Supreme Court Justice Leondra Kruger is a leading contender to replace Justice Stephen Breyer on the U.S. Supreme Court.
Jeff Chiu
California Supreme Court Justice Leondra Kruger is a leading contender to replace Justice Stephen Breyer on the U.S. Supreme Court.

Leondra Kruger has been a star in the legal profession for more than a decade. Though some Republicans have railed against President Biden's pledge to name a Black woman, calling it a "quota," when it comes to qualifications, Kruger has all the bells and whistles if Biden names her to the Supreme Court.

Kruger, 45, has been a California Supreme Court justice since 2015 and prior to that served in the George W. Bush and Obama administrations in the solicitor general's office, rising to the position of acting principal deputy.

In 2013 she left that office to serve as deputy assistant attorney general in the Office of Legal Counsel, which provides legal advice to the president and other executive branch agencies. Her legal experience also includes a two short stints at large law firms in Washington, D.C., and a year as a visiting professor at the University of Chicago Law School. During her tenure in the Department of Justice, Kruger twice received the the attorney general's award for exceptional service, the department's "highest award for employee performance."

By 2021, she had amassed a legal reputation so distinguished that Attorney General Merrick Garland twice asked her to serve as solicitor general in the Biden administration, but to no avail.

Kruger's standout career

Kruger's mother is an immigrant from Jamaica, and her late father was the Jewish son of Polish immigrants. Both parents were pediatricians, and her mother, now 80, is still in practice. Kruger was raised in Pasadena, Calif., then graduated with honors from Harvard College, and went on to Yale Law School, where she was elected editor-in-chief of the law review, the first Black woman to hold the position. After law school, she held two judicial clerkships, the second for Supreme Court Justice John Paul Stevens, now deceased.

She is married to Brian Hauck, a lawyer, and the couple has two children, a son and a daughter.

At each point in her career, Kruger has been a standout, so much so that when she was 38, California Gov. Jerry Brown, himself a Yale Law School graduate, recruited her for an opening on the state supreme court, where he once had been a law clerk.

Brown was interested in building back the stature of the court, returning it to the prestige it had in the 1960s and '70s when it was widely viewed as one of the most respected and influential courts in the country. So he began soliciting advice as to who were the country's most extraordinary lawyers. And Kruger's name kept popping up. In checking her out, he got rave reviews from those she had worked with and apparently was similarly impressed when he interviewed her because quickly thereafter, he nominated her to fill the vacant seat on the state supreme court.

If President Biden decides to nominate her to the nation's highest court, Kruger would be the first U.S. Supreme Court justice since Justice David Souter, appointed in 1990, whose principal prior judicial experience was on a state court. But she would not be the only woman from that legal background; the court's first female justice, Sandra Day O'Connor, was an intermediate-level state appeals court judge when President Reagan appointed her to the Supreme Court in 1981, carrying out a campaign pledge he made to name a woman if a vacancy occurred.

At the center of the California Supreme Court

Kruger's record on the California Supreme Court is, in many ways, much like the record of Justice Stephen Breyer, the justice she would succeed. In a 2018 interview with the Los Angeles Times Kruger said she tries to do the job "in a way that enhances the predictability and stability of the law."

"Justice Kruger does not appear to be motivated by a partisan agenda; instead her opinions apply a rigorous analysis regardless of what the result favors," concluded SCOCAblog, which monitors California Supreme Court decisions and conducted a qualitative and quantitative analysis of her record between 2015 and 2021. The analysis, part of a project at UC Berkley and Hastings law schools, concluded that Kruger was ideologically at the midpoint of the court, and that she was "not aligned with any ideological coalition."

That said, SCOCAblog also found that she sided with criminal defendants slightly more often than with prosecutors. Conversely, the analysis found that in some cases Kruger has voted to affirm the death penalty, over the dissent of two of her more liberal colleagues.

Kruger has considered a large number of death penalty cases because state law provides an automatic appeal in capital cases. Most of these are uncontroversial and result in the court unanimously upholding the punishment.

Others may likewise be unanimous but be more controversial because they reverse a death sentence in a high-profile case. For instance, in the case of Scott Peterson, convicted and sentenced to death for the 2002 murders of his pregnant wife, Laci, and unborn child, Kruger wrote the decision for the unanimous court. Her opinion said that the trial judge had made "a series of clear and significant errors in jury selection that, under long-standing U.S. Supreme Court precedent, undermined Peterson's right to an impartial jury at the penalty phase" of the trial.

The SCOCAblog analysis found that in interpreting statutes, Kruger is not a "strict textualist," that she has recognized that a statute "should not be blindly and literally applied" when doing so would lead to an "obvious injustice and perversion of the legislature purpose." In terms of characterizing Kruger's approach to the law, the analysis found that she is an "incrementalist," seeking to make "narrow changes in the law rather than expansive rulings."

An Obama-era case may dog her nomination

If there is a sleeping dog for Republicans to probe in her record, it is one of the 12 cases she argued during her years in the solicitor general's office, a case that pitted the constitutional guarantee to the free exercise of religion against federal laws that bar discrimination based on race, sex, or in the particular case she argued, disability.

When the case reached the high court in 2012, lower courts had recognized something known as the "ministerial exception," which protects churches and other religious groups from being sued for certain hiring and firing decisions that would otherwise violate the nation's anti-discrimination laws. But the Supreme Court itself had not yet recognized such an exception.

The case testing that proposition involved a lay teacher who had special religious training as a "called" teacher. She was fired after being diagnosed with narcolepsy. The church maintained that such hiring and firing disputes must be decided within the church, while the Obama administration argued that in a case involving a lay teacher, even one with special religious training and ordained as a "called teacher," there was no such automatic ministerial exception; furthermore, according to the administration's argument, the religion clauses of the Constitution — barring establishment of religion and guaranteeing free exercise — had only limited relevance when it came to laws banning discrimination.

Kruger argued the case in the Supreme Court, gamely defending the government's position even as the justices, both liberal and conservative responded with incredulity. Twice, conservative Justice Antonin Scalia called her position "extraordinary." And her one-time boss, Justice Kagan, called it "amazing." Kruger remained poised and confident in her responses throughout, but in the end, she did not get a single vote.

Donald Verrilli, the solicitor general at the time, says the position Kruger took was his alone. "If I had one thing I could take back from my years as solicitor general, it would be the position we took in that case," he said in an interview with NPR. "It was the first decision I made when taking over in the summer of 2012, and I blew it. The fault was mine alone."

For those who have worked in the the solicitor general's office, that is a perfectly plausible, even likely, account. But Kruger was the acting principal deputy at the time, and you can be sure that if nominated in the coming weeks, her confirmation hearing will include a lengthy exploration of how much input, if any, she had in making the decision.

Copyright 2022 NPR. To see more, visit https://www.npr.org.

Nina Totenberg
Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.