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Kruger Steady, Careful in Mold of Supreme Court Mentor Stevens

Jan. 27, 2022, 6:18 PM

Leondra Kruger has called her clerkship for the late Supreme Court Justice John Paul Stevens during the 2003 term “one of the most significant learning experiences I’ve ever had.”

In many ways, Kruger’s demeanor and approach to deciding matters of law mirrors that of her former boss.

Former colleagues talk about Kruger’s humility, a word she herself applied to Stevens; her polite but pointed questions on the bench, a characteristic also attributed to the late justice; and her tendency to not to tip her hat politically, another trait for which Stevens was known.

“Stevens would often pull facts out of the record that other people had not focused on, and Leondra is the same way,” said Rory Little, a professor at UC Hastings College of the Law who also clerked for Stevens and knows Kruger. “She really is a very careful, granular preparer of a case. She doesn’t go in knowing what she wants to decide until she’s really read the record thoroughly.”

It’s not to say Kruger and Stevens are identical or would come to the same decisions on issues. Stevens, a moderate conservative federal appeals court judge at the time Gerald Ford appointed him in 1975, aligned most frequently with the liberal justices by the end of his career. Kruger was an attorney in the Obama-era Solicitor General’s office and is currently a liberal-leaning justice on the California Supreme Court.

Stevens was one of the 108 White men who have served on the nation’s highest court. Kruger would make history as the first Black woman justice should President Joe Biden select her to replace Stephen Breyer.

Breyer announced his retirement Thursday, with plans to leave at the end of the term, assuming his successor is in place by then. Standing with Breyer at the White House, Biden renewed his pledge that the nominee “will be the first Black woman nominated to the U.S. Supreme Court.” Biden said he would announce his selection by the end of February. Kruger is one of several top contenders.

‘Lawyerly, Cautious’

Kruger’s Supreme Court clerkship is one of the rare topics she’ll talk about outside her role as a judge. A fan of mystery novels, according to one former colleague, Kruger remains something of a mystery herself.

Unlike most recent Supreme Court nominees, she hasn’t served on a federal court of appeals, which often provides evidence for both sides seeking signs of how she might rule as a justice. She largely avoided the public spotlight in both Washington and Sacramento, providing little fodder for opponents in her infrequent speeches or writings off the bench.

At 45, Kruger would be the youngest Supreme Court nominee since Clarence Thomas, who was 43. She was just 38 when she was nominated to the California Supreme Court in 2014 as one of the youngest appointees in the state’s history and only its second Black woman justice. The three-member panel that unanimously confirmed her nomination included then-Attorney General Kamala Harris.

Before that, she argued 12 cases in front of the U.S. Supreme Court while in the Obama-era solicitor general’s office, and helped craft legal arguments that convinced a majority of the justices to uphold key provisions of the Affordable Care Act as constitutional.

“It’s obvious she’s the appellate lawyer on the court,” Kirk Jenkins, an Arnold & Porter senior counsel and appellate specialist who has argued before Kruger. “She approaches the cases with that kind of mindset, a very lawyerly, cautious, step-by-step mindset,” Jenkins said.

She is more “more middle of the road” than colleagues on the California bench, such as Goodwin Liu or Mariano-Florentino Cuéllar, said Jenkins, who has analyzed the justices’ decisions.

“When it would come time to make a decision—whether how to write it or how to argue it orally—everything that comes out of her mouth or comes out on paper is just very clear, carefully worded, and to the point,” Melissa Arbus Sherry, a partner at Latham & Watkins who worked with Kruger at the solicitor general’s office, said.

Early Years

Kruger grew up in South Pasadena, California, the daughter of two pediatricians. Her late father was the son of Jewish immigrants from Eastern Europe. Her mother moved to the U.S. from Jamaica. During her confirmation hearing to the California Supreme Court, she credited her parents for teaching her the value of public service, education, and hard work.

She ventured east to attend Harvard College, where she wrote for the school newspaper, graduated with high honors, and was elected to Phi Beta Kappa. Kruger then went on to Yale Law School where she served as editor-in-chief of the law journal.

Three of the sitting justices—Samuel Alito, Brett Kavanaugh, and Sonia Sotomayor—were on the Yale Law Journal in school. None was editor-in-chief.

Kruger “was always good at building consensus,” said Joshua C. Tate, a law professor at Southern Methodist University who was an executive editor the same year she was at the top of the masthead. When it came to tense discussions about whether to accept a piece to the journal, she was able to guide the other editors toward a decision everyone was comfortable with, he said.

Following graduation, Kruger was a law clerk to Judge David S. Tatel of the U.S. Court of Appeals for the D.C. Circuit. In an interview with Bloomberg Law, Tatel said Kruger had a level of understanding of the appellate law that was beyond her years.

“She had a fierce commitment to precedent and being guided by statutory and constitutional text,” Tatel said.

She went on to work for Stevens on the Supreme Court. In an October 2019 panel about Supreme Court clerkships, Kruger said that while she remembered the whole day before her interview with the justice in vivid detail, she remembers little from their conversation.

“I think I spent the whole time sitting across the desk thinking ‘oh my goodness, I am talking to John Paul Stevens,’” Kruger said with a laugh.

Appellate Advocate

After several years in private practice at Wilmer, Cutler, Pickering, Hale and Dorr, and as a visiting professor at the University of Chicago Law School, Kruger entered public service as an assistant to the solicitor general. She later became the acting principal deputy when President Barack Obama nominated Elena Kagan to be a justice.

Kruger stayed cool during tense questioning from liberal and conservative justices during the argument for Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a key religious freedom case that the government ultimately lost. And she had victories, including her arguments in favor of safeguards for defendants in civil cases in Turner v. Rogers being cited in the 5-4 ruling.

Behind the scenes, Kruger was also an important part of the government’s advocacy in the 2012 case NFIB v. Sebelius, in which a divided court ultimately upheld the Affordable Care Act, said Joseph R. Palmore, co-chair of Morrison & Foerster’s Appellate and Supreme Court practice, who worked in the Solicitor General’s office with Kruger.

Part of Kruger’s role was to navigate the government’s argument that the health law’s minimum coverage provision wasn’t a tax for purposes of the anti-injunction statute, while still leaving the door open for the argument that it was a tax under the Constitution, Palmore said. He was responsible for the latter half of that argument, which is what Chief Justice John Roberts’ majority opinion hung on.

“That was a delicate argument for us to be making,” Palmore said. Kruger “was heavily involved in the briefing successfully making that argument,” he said.

Incrementalist

Kruger has built a reputation on the California Supreme Court as having an incremental approach to changing the law.

“If you’re looking for a firebrand who is going to kind of ignore law in order to achieve certain specific policy outcomes, Justice Kruger is not the one for you,” said Ben Feuer, chairman of the California Appellate Law Group, a San Francisco-based law firm, who has argued before Kruger.

Kruger has written for the majority in decisions that overturned a precedent permitting warrantless searches of vehicles and allowed CNN and other media organizations to use a state free speech law to block lawsuits alleging workplace bias or retaliation.

She wrote the majority opinion in a 4-3 ruling that there was no constitutional violation in taking DNA swabs following felony arrests. She ruled that “strong sanctions substantially reduce the likelihood of an unjustified intrusion on the suspect’s privacy.”

Kruger, in a 2018 Los Angeles Times article, described her approach to judging as a reflection of “the fact that we operate in a system of precedent.”

Justice Ming Chin, a conservative who served on the California Supreme Court for more than 24 years before retiring last fall, said, “Sometimes we disagreed on difficult issues, but it was never disagreeable.”

Not Political

It was a “running joke” among Stevens’ clerks that they “really had no idea what his politics were,” Kruger said on a January 2020 panel about the justice’s legacy. He was famously resistant to political labels, she said. Kruger has been described by peers in the same way.

“She’s not political,” Little, the UC Hastings professor who knows Kruger, said. Outside the courtroom, Kruger enjoys spending time with her two children and husband Brian Hauck, an attorney at Jenner & Block. She’d likely prefer the grocery store to a fancy party, he said.

“She does not lead a flashy, exciting life,” Little said. “She’s very happy being at home, having a big thick record of a case with a bunch of briefs to read, trying to figure out the smartest path to whatever the answer is.”

To contact the reporters on this story: Madison Alder in Washington at malder@bloomberglaw.com; Joyce E. Cutler in San Francisco at jcutler@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; Bernie Kohn at bkohn@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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