Fairly Unpredictable : On the lackluster California Supreme Court, Justice Joyce Kennard stands out. She’s a woman, she’s Asian, and she’s developed an tendency to disagree.
A few years ago, Jerry Brown, seated on an L. A.-San Francisco commuter flight, happened to glance at the reading material of the passenger in the row ahead of him. “You work for the state Supreme Court, don’t you?” he asked, spotting the unique format of the court’s memos. The passenger, a petite, striking woman with an indefinable olio of Eurasian features, wasn’t familiar to him. “Are you a clerk? No? Then what are you?”
“Well,” Joyce Kennard said, “I’m a justice.”
Brown, who as governor had appointed the first woman, Rose Bird, to the state’s highest bench, couldn’t identify the second.
His ignorance may say something about how well the ambitious Brown has kept up with his state’s legal system, but few other Californians have heard of Justice Kennard, either. She is as low-profile as Bird, voted out of office with two courtmates in 1986, was notorious. And her anonymity has been perpetuated by a lack of self-aggrandizement and by a court as colorless as Bird’s was controversial.
When she was appointed to the court by Gov. George Deukmejian in 1989, most observers assumed that Kennard, a Republican, would fit the mold of moderate conservatism Deukmeijian had sought in his other appointees, especially since she was a former prosecutor. And despite some sparks of unexpected divergence from the conservative majority in her first two sessions, that is just what she did.
But since the retirement in 1991 of liberal justice Allen Broussard, Kennard has emerged as an increasingly visible, opinionated and unpredictable force. It was almost as if the departure of Broussard, a black man who had become a good friend and was the only other nonwhite on the seven-person court, made the ship tilt too far to the right, and Kennard, like a good sailor, moved toward the center to provide ballast. Now she’s just as apt to side with longtime (and now lone) liberal Stanley Mosk (an appointee of Jerry Brown’s father, Pat Brown) as with the court’s five conservatives, who last year voted unanimously 94% of the time.
In 1992, Kennard wrote the majority opinion in eight cases. Two of them were especially significant: One upheld the ban on prayers at high school graduations (Sands vs. Morongo Unified School District); the other made the Los Angeles Police Department liable for a rape by an police officer (Mary M. vs. City of Los Angeles). Her reasoning in the first was later backed in a similar case before the U. S. Supreme Court; the second set a precedent for women’s rights by holding an employer responsible for sexual assaults committed by their employees while on duty.
But what really surprised and impressed court watchers were Kennard’s numerous and trenchant dissents. During her first two years on the bench, she disagreed with the majority decision in only about 6% of the cases; last year, about 25% of her votes were dissents and she authored 13, second only to Mosk’s 18.
This increase in dissension certainly doesn’t injure her reputation. “She’s perceived as a very courageous judge, who is very thoughtful and thorough,” says Gerald Uelmen, dean of the Santa Clara University Law School. “But from a personal standpoint, it’s probably uncomfortable. And I sense that, to some extent, she might be frozen out a bit (in the assignment of writing opinions for cases).”
Playing the dissenter can be a frustrating role for a justice. For one thing, if she works hard to craft an argument but can’t muster the votes for a majority, much of her work goes for naught. The dissent then is only a response; it doesn’t shape law. But well-reasoned dissents may affect later cases or stimulate legislative action, and they keep a court honest in its deliberations. “A court with little dissent,” Uelmen wrote in the Daily Journal, a Los Angeles-based legal publication, “is likely to be an anemic institution which rarely re-examines its basic assumptions.”
That might well describe the current court, whose conservative majority, says UC Berkeley law professor Stephen R. Barnett, is lackluster and in lock-step. Chief Justice Malcolm Lucas, Marvin Baxter, Armand Arabian, Edward Panelli and Ronald George may not be a “bunch of right-wing demolition experts,” he says, “but they’re too monolithic and sheep-like.”
Critics say the Lucas court is more likely to favor the prosecution and employers than the previous court, that it has restricted certain civil rights protections, lacks diversity and is overly concerned with docket clearing.
It has also been accused of losing the cutting-edge status earned in the ‘60s and early ‘70s. Although California is still one of the two most influential state courts (New York is the other), its turn toward conservatism has made some feel that it is no longer a trendsetter in legal opinion. Some members of the legal community have also called the court “results-oriented"--a sly epithet implying that it sculpts its decisions to fit a desired (and perhaps ideologically based) outcome.
On the other hand, some have found the court’s conservatism a welcome relief after the rancorous Bird years, when the court was widely considered overly liberal, overly activist and overly willing to overturn the death penalty.
“I don’t see the Lucas court as extreme in any fashion,” says Ron Zumbrun, president of the Pacific Legal Foundation, a conservative public-interest law firm. “I see it as a responsible and thinking court.”
Unlike the court itself, Kennard receives kudos from the left and the right; it is almost impossible to find anyone critical of her. “She is a star,” says Barnett. “She stands out for her intellect, independence and judicial flair. Her opinions don’t seem like the work of court bureaucrats, as do those of the five in the court majority.”
“I was pleasantly surprised by her perceptiveness,” says Zumbrun, whose organization recently argued two cases before the court. (They lost one case, in which Kennard was the lone dissenter, and the other case is pending.) “She obviously has depth and astuteness, and you can’t place her in a certain notch.”
Kennard also brings a triple dose of diversity to the otherwise homogeneous court--as a woman, an Asian and a person with a disability (she’s an above-the-knee amputee). And then there’s her extraordinary life story. The judge who now presides in marble courtrooms grew up in a Quonset hut in Indonesia. Regarded as the finest writer on the court, Kennard learned English not even as a second language, but a third (after Dutch and German). And in a world dominated by men, Joyce Kennard owes her education, her survival and her dignity to one remarkable woman.
Kennard’s judicial temperament, especially her concern for individual rights, seems clearly informed by her experience. U.S. Supreme Court Justice Clarence Thomas, who similarly faced racism and poverty on his path to judicial success, seemed to have rediscovered his roots only in time for his Supreme Court confirmation hearings. Joyce Kennard has never forgotten hers.
The courtroom of the Second Court of Appeals in downtown Los Angeles, with its sombrous wood paneling and brass-gridded clerestory windows, has the reverent aura of a modern secular chapel. On an October day, the six men and one woman of the state Supreme Court sit on tall green-upholstered chairs beneath chandeliers that look like giant agate egg yolks, framed by a jade-green marble backdrop and an oversized gold seal of California.
The men--all white, all at various stages of hair recession--look like uncomfortable choir members in their black robes. Justice Kennard stands out not just for her gender or age (at 51, she seems much younger than the others), but for her stylishness: Today, she has accessorized her dark uniform with a white beaded necklace. Having grown up learning to make do with very little, the carefully tailored Kennard can turn a dreary robe into haute couture .
The justices, making one of their bimonthly visits to Los Angeles from their San Francisco headquarters, are hearing an appeal in a capital punishment case. Kennard seems the most alert; she leans forward, waiting for responses, head tilted, hands clasped around a pencil, the picture of concentration.
Richard Stephens, a Pacific Legal Foundation attorney, says that Kennard’s attentiveness during oral arguments is rare among the judges and a boon to litigants. “She seems genuinely interested and up on the issues. It’s very helpful to an attorney to have a justice ask questions because you get a chance to clear up any misunderstandings about your position.”
This case will be one of the few death penalty verdicts overturned by the Lucas court, presided over by the tall, patrician--and distracted-looking--Malcolm Lucas, a longtime federal judge appointed to the state Supreme Court by Deukmejian. Rose Bird’s court overturned 64 of the 68 death penalty cases that came before it; the Lucas court has affirmed 130 of the 160 it has heard. This time, the justices will order a new trial, ruling that the trial lawyer failed to provide competent representation.
Kennard often votes with the majority on death penalty cases, although she dissented half a dozen times in 1992. If anything about her decisions can be foreseen, it’s that Kennard, who has faced the sting of discrimination in her own life, is obsessed with ensuring that her actions, decisions and opinions are fair. It’s a word she uses often and fervently.
She wrote with simple eloquence about judicial conscience, for example, in Neary vs. Regents of the University of California, a recent dissent that has been widely praised. The case concerned Chico rancher George Neary, who lost 500 head of cattle in 1978 after the state sprayed Toxaphene to fend off a scabies mite infestation. Neary blamed the pesticide for the bovines’ deaths, but three veterinarians from the University of California at Davis concluded that the fault was Neary’s mismanagement--and said so in a published report. Neary sued for libel and won a $7-million judgment.
However, during the appeals process, the university offered to settle for $3 million--if the guilty verdict was reversed. The Court of Appeal wouldn’t go along with the “stipulated reversal,” but the Supreme Court did. The majority opinion, authored by Justice Marvin Baxter concluded that the settlement was in the public interest, as it saved money and further litigation. The Court of Appeal, he wrote, had “put the abstract cart before the practical horse.”
Kennard, the only dissenter, felt the verdict could erode respect for the courts by allowing wealthy litigants to buy off adverse judgments. “When a trial court renders judgment in a particular case,” she wrote, “it is not just deciding who wins and who loses, who pays and who recovers. Rather, the ultimate purpose . . . is to administer the laws of this state and thereby to do substantial justice.”
“I believe that her dissents will ultimately become the law,” says Santa Clara County Superior Court Judge LaDoris Cordell. “It may not be in the next couple of years, but that’s where the law ought to be. They’re so well-written, so well thought out. She’s a purist--she’s not moved by political winds--and that’s rare to see these days.”
We’re in the justice’s “chambers"--a long, narrow office in the new Marathon Plaza building in downtown San Francisco. This isn’t a formal interview; she hasn’t given interviews since shortly after joining the court. It’s a measure of her fairness that she won’t make exceptions, but it’s a measure of her courtesy and perhaps curiosity--she knows I’ve already talked to many of her friends--that she has agreed to an informal meeting to go over details of her past.
As I walk in, Kennard is chatting with her secretary and a young man from the mail room. Kennard’s close friends have said that she doesn’t distinguish between secretaries and lawyers, between janitors and judges.
“She doesn’t forget who her friends are, who has been loyal to her,” says Dale Flanagan, a computer consultant who cemented a friendship with Kennard when his wife, Sharon, an attorney worked with her on the Court of Appeals.
She also makes no distinctions by party persuasion, either among her staff or her friends--many of whom, like her husband Bob, are liberal Democrats who have amiable political disagreements with the judge. The five research attorneys on her staff come from a gamut of political backgrounds, including the American Civil Liberties Union. Kennard clearly thrives on discussion and says she feels better off having rough-and-tumble arguments about a case’s merits in her own chambers first. “I think the opinion comes out balanced for doing this,” she says.
“We’re all actually fairly moderate,” says John Murphy, one of her research attorneys, “but we’re not moderate in the same spots.”
The justices have an enormous workload, including a mandated review of every death penalty case, and Kennard is famous for not delegating all the labor to her underlings, as many judges do. (A former secretary says Kennard did most of her own typing when she was a research attorney for the state Court of Appeals.) She is involved in every office decision, every piece of paper, she tells me with a mixture of pride and a little weariness, and saves her line-by-line edited rough drafts to prove it.
“She wants no holes in her logic, that’s one reason she works so hard,” says Dorothy Kray, a friend from Kennard’s days as a research attorney. “She also doesn’t want to use the language of her attorneys, so she rewrites to make it her own. Few judges have that high a standard.”
“And that’s why there’s no time left for a personal life,” Kennard sighs. Her husband Bob, a retired deputy county assessor, with whom she seems to have a jocular, supportive yet independent relationship, still lives in their Sherman Oaks home. It is up for sale, however and he plans to join her in the Bay Area this year. Until then, they see each other only about once a month. In whatever spare time she can scrounge, she gardens, collects antiques and ceramic carousel horses and listens to classical music.
When I meet her, she welcomes me with warmth but a certain wariness and fixes me with an intense gaze that must have made defendants swallow hard when facing her in criminal court. I had heard many affectionate tales about her from her friends, but few mentioned her rock-ribbed core. She soon relaxes, however, revealing an icebreaking smile.
Joyce Luther was a war baby, born in 1941 in Bandung, an inland city on the west end of the island of Java in Indonesia, then part of the Dutch East Indies. Her mother Wilhelmine was Chinese-Indonesian with a sprinkling of Dutch and Belgian; her father, Johan, was a mixture of Dutch, Indonesian and German.
Kennard’s eclectic heritage left her with a floating sense of identity. “When you’re mixed,” she says, with a faint but definite accent that’s as unplaceable as her visible ethnicity, “you don’t belong to any group.”
And you may also draw discrimination from all sides. During World War II, Kennard’s father, who was working in government service, died in a Japanese prison camp. The Indonesians, who considered people of mixed heritage to be Dutch, weren’t much better friends. In 1942, fearful of Indonesian terrorists, Wilhelmine, her baby daughter, mother and sister went to a protective camp for women and children on Java, and there they waited out the war.
Wilhelmine was fiercely protective of her only child; among other everyday heroisms, she finagled medication from the camp’s guard when Joyce was deathly ill. She was also a proud woman, refusing to bow to a Japanese sentry and so was beaten and forced to sit for hours in the equatorial sun.
After the war ended and the family left the camp, Joyce had a pleasant, but bare-bones life. She had no toys, no teddy bears. But one day when she was around 6, she got brief glimpse at a different world. A playmate showed her a marvelous book she had been bragging about, filled with enthralling images of dresses and bicycles and dolls. “It was the most beautiful book I’d ever seen,” Kennard says, her eyes sparkling as she remembers the moment. It was a Sears catalogue.
Java became independent in 1949, and Wilhelmine was pressured to become an Indonesian citizen. But she didn’t want to give up her Dutch citizenship, so she followed her sister Marie to western New Guinea (now Irian Jaya), the last remaining crumb of the Dutch colonial empire on the Indonesian archipelago. Joyce was 10.
Wilhelmine became a typist for a Dutch oil company, but still the family was dogged by racism. As “nonwhites” they had to live in the Indonesian section of the company-owned town, which meant inferior housing, stores and education. They shared a Quonset hut with four families; their bathtub was an outside oil drum, their toilet a faraway cement ditch at the edge of the jungle.
Joyce was already enamored of learning--she would borrow the fattest book from the library in Java because it lasted longest--and she began to learn English at a little missionary school in New Guinea, listening to pop songs on Radio Australia and practicing business correspondence--like writing fictitious orders to bicycle companies in England.
Eventually the Quonset hut burned, and the little missionary school closed. At age 14, she and her mother set off by boat for Holland, and she finally came in touch with telephones, television and modernity. Wilhelmine managed to persuade the head of a lyceum to admit her daughter to its college-prep courses even though she was behind in math. A quick study, Kennard seemed on her way to a university. But when she was 16, she discovered a tumor on her right leg. Finally diagnosed as a life-threatening condition (Kennard is still not sure if it was a malignancy), the leg was amputated.
These days, with a high-tech $20,000 prosthesis, Kennard’s disability goes unnoticed except for a slight hitch in her fairly slow, deliberate walk. The leg looks completely natural, even when Kennard is wearing a dress, and she doesn’t complain about any discomfort other than to say life would have been easier if the amputation had been below the knee.
Joyce handled the physical and emotional trauma with an already well-honed stoicism. She wouldn’t depend on anyone, she decided. The photos of her from that time show a beautiful, firm-lipped, steely-eyed teen-ager. What hurt most was that she was no longer on a university track after the setback of her illness. So she enrolled in a business school to learn secretarial skills and Dutch/English interpreting.
“I never expect much, and then things just happen,” she says of the whole unhoped-for course of her career, but that fatalism proved especially prescient back then. Just before Kennard was to take the interpreters’ exam, the United States said it would accept a large immigrant quota of Dutch Indonesians. Wilhelmine, who had a menial job in a restaurant, insisted that her daughter go, but Wilhelmine would stay in Holland so Joyce would always have a place to come home to.
Kennard had an uncle in Los Angeles. In 1961, she arrived in the United States with “no illusions of grandeur,” hoping only for a factory job. Instead, with her shorthand skills, she landed a $280-a-month secretarial position at Occidental Life Insurance. “Success had arrived,” she says, smiling at her naivete. She was 20 years old.
Wilhelmine visited her at her home in South Pasadena only once and in snapshots she looks prematurely aged. In 1968, after Joyce had been working at Occidental for seven years, she learned Wilhelmine was dying of lung cancer and flew back to Holland to tend to her. Joyce stayed two months and then flew home. Two days later, her mother died. But Wilhelmine had left a final unexpected gift, somehow squirreling away $5,000 as a bequest to her daughter. “That legacy was the key to my education,” says Kennard.
Working part-time and earning scholarships, Kennard made it through Pasadena City College and then USC in just three years. She majored in German, but by then she was working as a legal secretary and her boss encouraged her to try law school. She had no great aspirations to be a lawyer, but thought a law degree would “open doors.”
Her friends at USC Law School remember her as people still describe her--hard-working, of course, and ambitious only about public service, not personal fortune. “There were people in our class who were there for one reason--to get the biggest law-firm job they could,” says classmate Cary Lowe, now a lawyer in San Bernardino. “If anything, Joyce shrank from the limelight, in class and out of it.”
“She cared about her fellow students, sharing her notes and analyses,” adds another friend, Los Angeles attorney Gail Gordon. “In law school, that’s a rare characteristic.”
Kennard insists that she’s uninterested in politics, but her ideological bent was apparent to friends. “I would have considered her to be fairly conservative, but in a humanistic sort of way,” says Lowe. “She held values you would consider not uncommon among the prototypal hard-working immigrant--belief in perseverance, individual effort.”
Kennard earned degrees in law and public administration in another quick three years At the time, women were pretty much second-class citizens in the legal world (they made up just 15% of Kennard’s law school class), and stood a better chance of getting in the government’s door than at private firms. Nonetheless, the state attorney general’s office, where she had applied to be an attorney in the civil division, wanted her to start as a secretary.
“Don’t do it!” said Bob Kennard, the tall, handsome Kentuckian she had met at a car repair shop and was dating (they married in 1976 and have no children). Bob, with his white hair and dignified bearing would be central casting’s pre-diversity idea of a judge. Indeed, when a U. S. Supreme Court justice (who she refuses to name) was introduced to Justice Kennard at a reception, he shook Bob’s hand.
Taking her husband’s advice, Joyce instead applied to the criminal division and was hired as a deputy attorney general in 1975, and served there four years. She moved on to the Court of Appeals in 1979 and spent seven years as a research attorney. She first applied for a judgeship, unsuccessfully, to--ironically--Jerry Brown, but it wasn’t a burning desire. “I didn’t think I’d want to judge people,” she says.
But once George Deukmejian discovered her, she was on a bullet train. The push for multicultural diversity was on, and her demographics, combined with her excellent reputation, made her politically irresistible.
In 1986, she was named to the Municipal Court in San Fernando, a year later to the Superior Court, and a year after that to the Second District Court of Appeal. Bob joked that it was getting expensive to keep giving confirmation luncheons. In 1989, Deukmejian named her to the Supreme Court, replacing retiring justice John Arguelles. Obviously the fact that she’s a “three-fer” (minority, disabled, female) had quota-filling appeal, but her colleagues quickly point out the merit in her rapid advancement.
“It was a case of the right thing happening to the right person,” insists Helen Hayase, who served as one of her research attorneys at the Court of Appeal. “I certainly didn’t see her running around trying to be a politician.”
At her swearing-in, Kennard read letters she had received from a group of Woodland Hills 7th graders. “There are a lot of male judges and it’s time for a woman on the court,” they read, and, “You are very pretty.” Tiny, 70-year-old Aunt Marie came from Holland to celebrate.
If there has been a bittersweet tinge to her success, it’s that Wilhelmine didn’t live to see it. “She sacrificed so much,” Kennard says, her eyes welling with tears. She stops speaking to compose herself, and slowly crosses the room to get a tissue.
Though public attention seem unimportant to Kennard, she was especially touched by two awards she received in the same recent week, one for the honor she has brought to her Netherlands-American heritage, the other for her prominence as a Chinese judge.
As she discusses the awards, when we meet again on a very rainy January day, this time at her Sherman Oaks home, her pride is obvious. “It’s about getting accepted,” she says, touching her hands to her chest. “I’m not a blue-eyed blond, I couldn’t pass as Dutch and I’m only partly Chinese. I always had to check off the box that said ‘Other.’ Now you know how nice it is to get recognition from the Dutch and the Chinese.”
But nothing drew more notice than a personal stand she took in December, 1991, that had nothing to do with heritage. When the state’s financial crisis forced a $860,000 cut in the appellate courts’ budget, Chief Justice Lucas asked employees of the appellate court system to take voluntary four-day, no-pay furloughs. Kennard, who makes $103,000 a year, took four days off payroll as well (though she worked anyway), insisting she could never ask her staff to do something she wouldn’t do. She was the only one of 95 appellate judges to take the cut.
“She’s staunchly admired by the ‘worker bees’ in the legal community for this,” says Fran Kandel, a friend since she and Kennard were research attorneys for the Court of Appeals.
Kennard’s decision made news--and reportedly ruffled high court feathers. It may also have pressed Lucas into a make-up action, because he later asked appellate judges to take furloughs as well (how many did wasn’t publicized).
To Cordell, the Santa Clara County Superior Court judge, Kennard’s action gave further insight to her judicial bent. “When someone at the helm of a system takes a stand that’s compassionate,” she says, “it means they’re going to be compassionate when looking at other issues as well.”
Despite her schedule, Kennard has also made herself available to many seemingly unlikely audiences--from justices of the peace in Lake Tahoe to the Sacramento Women/Men Amputee Group. Founder Eleanor Caton, an above-the-knee amputee who’s in her 70s, says Kennard’s visit drew a relatively small turnout, possibly because the members may not have believed that someone so prestigious would actually be there. But she got a jaw-dropping response when she told her personal tale. She even pulled up her skirt and compared prostheses, and left with some of Eleanor’s home-baked chocolate chip cookies.
“She’s a normal person,” says Caton’s husband, Bill, “with an extraordinary mind.”
Once appointed, California Supreme Court justices must stand for election at the next gubernatorial vote. Their term is 12 years, but if a justice resigns midterm, the replacement can only be elected to serve out the remaining years. Kennard won election in 1990 to complete one of those abbreviated terms, so she will be up for election again in 1994.
But it might be a moot point by then if Bill Clinton notices her. U. S. Supreme Court Justice Harry Blackmun is 84 and might retire soon, and Kennard would be an inspired choice to succeed him; Clinton has yet to name an Asian-American, male or female, to a top-level post. Without prompting, Cordell, Uelmen and Barnett all mentioned the possibility of her nomination.
“There are relatively few justices who have the credentials Kennard does,” says Barnett. “She should be a leading candidate.”
It would certainly be an inspiring choice for the groups that identify with Kennard (“She could be a voice for women that Sandra Day O’Connor has not been,” says Dorothy Kray.) Even though she can’t be an outright advocate on particular issues, Kennard affirms in her speeches the need for a judiciary more fairly stocked with women and with people “of various hues and colors,” as she put it to the American Bar Association Commission on Minorities last summer.
The ultimate irony is that all the things that blocked her path as she grew up--her mixed heritage, her disability, her gender--now push Kennard forward.
“It’s a perverse compensation,” says Dale Flanagan, who, like Kennard, has Asian-European roots. “For most of her life, all those things worked against her. But they gave her perspective on the human condition, made her empathetic. And it all worked out.”