The Volokh Conspiracy
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How John Eastman helped AG Harris Get Elected, and why VP Harris Thought Leondra Kruger was too "Cautious" for SCOTUS, While KBJ Would Be "Bold"
Two tidbits from the New York Times that I did not know.
The New York Times, perhaps in something of a rush, is catching up with the usual profiles of a presidential candidate that would usually come during the nomination season. Of course, as Maureen Dowd points out, there was no such process for the current Democratic nominee. Nomination by acclimation, as it were. So the name of the game is backfill. Today's Times shared two tidbits about Kamala Harris that may be of interest to readers.
First, it turns out that John Eastman, of all people, helped Harris prevail in her razor-thin margin of victory for AG. For those who were not around fifteen years ago, Eastman was a leading figure in legal education. As dean at Chapman, Eastman was building a nucleus of leading conservative law professors. One of his more important hires was to poach Ron Rotunda, my professor, from George Mason. But in 2010, Eastman resigned as Dean to run for California Attorney General. Eastman would lose the Republican primary to Los Angeles County District Attorney Steve Cooley. During that primary, as the Times points out, Eastman landed a strong punch on Cooley. Apparently, Cooley would have been eligible to receive both the salary of Attorney General, and his pension from serving as District Attorney. Eastman attacked Cooley for "double dipping."
Later, during a debate between Cooley, and Kamala Harris, the Democratic nominee for AG, Eastman's "double dipping" point was brought up:
Dan Morain, who worked for The Sacramento Bee's editorial page, asked who would bring up double-dipping — that is, taking both a public salary and a public pension. It had been an issue in the Republican primary, first raised by John Eastman, Mr. Cooley's primary opponent. Mr. Eastman is better known now for his efforts to keep Mr. Trump in office after the 2020 election, which resulted in an indictment and disbarment.
"I'm going to ask that," replied Jack Leonard, a Los Angeles Times reporter who covered Mr. Cooley.
Collis gave the wrong answer, and said he "earned" the right to accept the salary and the pension:
Inside the practice courtroom, Mr. Leonard outlined that the $150,000 salary of the California attorney general was half of the $292,300 salary that Mr. Cooley was earning as the local district attorney. If he double-dipped by taking a taxpayer-paid pension as a former district attorney and a taxpayer-paid salary as the state attorney general, Mr. Cooley would be in line to make more than $400,000.
"Do you plan to double-dip by taking both a pension and your salary as attorney general?" Mr. Leonard asked.
"Yes, I do," Mr. Cooley said without hesitation.
He glanced at Ms. Harris. She said nothing.
"I earned it."
But Mr. Cooley was not yet done. "I definitely earned whatever pension rights I have, and I will certainly rely upon that to supplement the very low, incredibly low salary that's paid to the attorney general," he added.
"It was tone deaf," Mr. Riggs said. "It was startling," Mr. Leonard said. "It was awful," Mr. Morain said. "It was jaw-dropping," Mr. Smith said.
Harris would prevail by less than 1% in the race. I think it is safe to say that John Eastman, at least in part, helped Harris win her race for Attorney General. Had the primary gone differently, imagine if Eastman had bested Harris in the general election. What a different world we would be in.
The next tidbit concerns Harris's role in filling Justice Breyer's seat. As readers will recall, President Biden promised to select a black woman for the Supreme Court seat. (He previously also promised to select a black woman for the vice presidency.) The top three nominees were Judge Ketanji Brown Jackson, Justice Leondra Kruger of the California Supreme Court, and District Court Judge Michelle Childs from South Carolina. Both Jackson and Kruger had clerked on the Supreme Court. Childs was favored by Representative James E. Clyburn of South Carolina, who helped turn the 2020 Democratic primary in Biden's favor.
VP Harris played a role in the process, which the Times describes:
She was also deeply involved in Mr. Biden's only Supreme Court appointment, interviewing all three finalists and studying their legal records. While she considered Leondra R. Kruger, a California Supreme Court justice, a "very sharp lawyer," she concluded that the justice might be too cautious for the moment, according to a former White House official.
J. Michelle Childs, then a district judge, had the support of both Mr. Clyburn and Senator Joe Manchin III, then a Democrat from West Virginia, making her the choice of least resistance. But Ms. Harris concluded that Ketanji Brown Jackson, a federal appeals judge, would be the boldest option, the former official and Mr. Klain said. "Joe, you may only get one chance to do this as president, and you want to be proud of your legacy here," she told Mr. Biden, according to Mr. Klain.
There is a lot packed into this paragraph. First, Harris echoed what was the general consensus: Kruger, a former Deputy Solicitor General, was viewed as a "very sharp lawyer." As a former Deputy SG, she had developed a sterling reputation for intellect. But there were suggestions she would not be as willing to make waves. Apparently she was something of a moderate on the California Supreme Court! Kruger also very publicly declined President Biden's invitation to serve as Solicitor General. (I wrote about Kruger here, here, here, and here.) Second, Childs, who had been nominated to the D.C. Circuit, was viewed as candidate who would face the "least resistance." (I wrote about Childs here and here.) But did Harris recommend Kruger or Childs? No, she backed Jackson. Why? Third, Harris drew a contrast between Kruger and Jackson. The former was "cautious" and the latter was "bold."
I know I am widely ridiculed on the right when I discuss judicial courage. But progressives get it. They understand intrinsically that the primary limitation of a Supreme Court justice is not her intellect or precedent, but fortitude. Democrats are not interested in appointing an intellectual who exhibits caution to the Supreme Court. VP Harris recognized this dynamic fully. Caution may be fine for the lower courts, but it is not the order of the day for SCOTUS. Courage is. Really, courage is important on all levels, but especially on the Supreme Court where the stakes are higher, and pressure is stronger. And a judicial nominee's record must clearly demonstrate by word and deed their courage. In that regard, Justice Jackson was the ideal pick for the Supreme Court, and has justified her selection with everything she has done on the bench. Maybe we should ask Harris to help pick Republican nominees for the Supreme Court?
