The Right Coast

December 10, 2005
Schwarzenegger Appoints Carol Corrigan to California Supreme Court
By Gail Heriot

Governor Schwarzenegger has appointed First District Court of Appeal Judge Carol Corrigan to fill the vacancy left by California Supreme Court Justice Janice Rogers Brown. The San Diego Union Tribune reports that Corrigan is a moderate Republican, who was a leader in an effort to make California jury instructions more understandable to jurors. This is not a glamourous appointment, but it is probably a safe one.

It's unclear exactly who the winners and the losers are here. Some California conservatives have been concerned over Schwarzenegger's peculiar (and probably ill-considered) appointment of Democrat Susan Kennedy--a former Jane Fonda/Tom Hayden protege and top aide to ousted Governor Gray Davis--as his new Chief of Staff. They had suggested that they might be placated if the Governor were to appoint a conservative intellectual heavyweight to the California Supreme Court to replace the very conservative Justice Brown. If the description of Corrigan in the Union Tribune is correct, I don't think she's exactly their dream appointment. On the other hand, she is a Republican (since 1995 anyway) and an experienced jurist who is unlikely to be any kind of embarrassment to Schwarzenegger or to the California Supreme Court. And she is likely to be confirmed by the Commission on Judicial Appointments--a three member body consisting of Chief Justice Ronald George (a Republican appointee), Attorney General Bill Lockyear (a Democrat and a favorite among his party's activists), and Court of Appeal Judge Joan Klein (a Democratic appointee). (The California Legislature plays no role in judicial confirmations). The last thing in the world Schwarzenegger wants a month after his Election Day debacle is a fight with the Democrats. He'd rather risk a little more alienation from his conservative base.

It remains to be seen how that conservative base will react to this appointment. Its announcement on a Friday suggests that Schwarzenegger was not confident that it would be met with effusive praise. But I'm inclined to think that it's not a bad appointment and that conservatives have little choice but to be happy about it. They got a moderate Republican who is considered a competent jurist. There's a lot to be said for that. And Schwarzenegger never promised them conservative intellectual heavyweight appointments to the bench. Their real beef with Schwarzenegger is over the Susan Kennedy appointment, which he really will have to make up to them at some point in the near future or risk being a one-term governor. But there will be time for that.

Right now he is busy trying to patch things up with the moderate voters who also helped make him governor. He failed to convince these voters of the importance of his initiative platform last month, and as a result every single one of his proposals failed to pass. He's right to avoid aggravating his problems with moderate (and liberal) voters now. He's not exactly in a position of strength.

Perhaps, George W. Bush is the real loser. Bush plucked Brown--a conservative favorite--out of the California Supreme Court and (after much stalling and handwringing in the Senate) placed her on the United States Court of Appeals for the D.C. Circuit. Such a move was clearly consistent with his campaign promise to appoint judges in the mold of Scalia and Thomas. The problem is that moving a prominent conservative jurist from one court to another does not increase the number of high court judges in the mold of Scalia and Thomas. Brown's appointment to the D.C. Circuit has to be seen along with Corrigan's elevation and it's probably a mistake to view Corrigan as in the mold of Scalia and Thomas. The D.C. Circuit is frequently called "the second most powerful court in America," but I think that's a bunch of hooey. There is not "second most poweful court in America," or if there is, it's a distant second. And, moreover, it's not the D.C. Circuit, it's the California Supreme Court. But that's another story that I hope to blog on later ....