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Legal Giants

By Donna Mallard | May 2, 2015
News

Law Office Management

May 2, 2015

Legal Giants

Analyzing the achievements of the state's main players.

Four lawyers walk into a bar. What comes next is either a punch line, or a spirited discussion. But the game on television is a blowout, and we're a bit bored. So one of us poses a question: Who is the most influential California lawyer or jurist of our age?

As a dizzying list of names unfolds, it's clear that some guidelines are needed. Quickly we agree: The individual needs to be known primarily for his or her work in the legal arena. This eliminates someone like Gov. Jerry Brown, who is most renowned for his work in politics.

In true lawyerly fashion, we eventually come up with a serviceable two-prong test: One, does the person define -for good or bad-a time in history, and he or she will be remembered for doing so long after that influence has waned? And two, a Potter Stewart-like "I know it when I see it" common-sense gut check.

Time is really the great ally in looking backward and appraising significance: It distills the important from the trivial, the profound from the fad.

We Californians have been blessed with an extraordinary progression of legal giants who defined their age and influence ours today. A few examples:

Earl Rogers was one of California's first celebrated lawyers and, probably, California's first "celebrity" lawyer. He defended an impressive array of alleged criminals, both unknown and famous, including Griffith J. Griffith, tried for attempting to murder his wife, and Clarence Darrow, accused of attempting to bribe a juror. Rogers put California on the national legal map.

Lorenzo Sawyer was a California Supreme Court justice and, later, a federal judge. Sawyer decided some of the early Chinese-exclusion cases in California, laboring to balance statutory intent with scientific evidence. Perhaps his most lasting decision, though, was Woodruff v. North Bloomfield Gravel Mining Co., which effectively outlawed hydraulic mining and marked California's transition from a mining state to an agricultural one.

Roger Traynor was the chief justice of the California Supreme Court at the apex of its nationwide influence. His opinions ranged from Perez v. Sharp, in which the court became the first in the nation to strike down anti-miscegenation laws, to Greenman v. Yuba Power Products, Inc., which created modern products-liability law.

Earl Warren is, without question, one of the most important lawyers and judges in the history of our country. As California's attorney general he was a moving force behind the World War II internment of Japanese-Americans, an action he later said he "deeply regretted." After serving as the state's 30th governor, he became the chief justice of the U.S. Supreme Court. The "Warren Court," through its decisions in Brown v. Board of Education, Gideon v. Wainwright, Miranda v. Arizona, and Reynolds v. Sims, among many others, transformed the nation.

And then there's Warren Christopher, who defined California legal power and prowess for nearly 40 years, first as the leader of O'Melveny & Myers, then as U.S. secretary of state under Bill Clinton. Johnnie Cochran Jr., in turn, defined the "all in" high-profile criminal defense celebrity practitioner who significantly influenced not only the law, but also popular culture.

So who is today's heir to these giants? Our enlivened group suggests a string of candidates, including Larry Sonsini and Morgan Chu for intellectual property law; Kathleen Sullivan and Erwin Chemerinsky for legal education and the practice of law; Tom Girardi, Elizabeth Cabraser, and Joseph Cotchett for plaintiffs work; Connie Rice for civil rights and her profound influence on modern policing practices; Bob Dell and Ronald Olson for guiding juggernaut law firms in the age of "big law"; former California Supreme Court Chief Justice Ronald George for his indelible stamp both on the court's decisions and the changes he brought to the management of California's judicial system; and Judy Clarke for her long string of successes in death penalty defense.

All are credible choices. But for my money, the Californian who defines our legal age is U.S. Supreme Court Justice Anthony Kennedy. His California credentials are impeccable: Born and raised in Sacramento, he served as a page in the California state Senate, attended Stanford as an undergraduate, practiced law in San Francisco and Sacramento, and taught at McGeorge School of Law. Before his appointment to the high court in 1988, he served on the Ninth Circuit.

There is no doubting his influence. Although he reportedly dislikes the description, Justice Kennedy embodies the term swing vote in modern Supreme Court history-along with former Justice Sandra Day O'Connor. Casting the deciding vote in a long string of 5-4 Supreme Court decisions, Kennedy is disproportionately responsible for the state of constitutional law in the past two decades. His decisions and votes have led to a Court that generally favors prosecutors over the accused, strongly supports the death penalty and gun rights, shows significant deference to the executive branch, is less stringent in the separation of state and religion, supports a broad view of constitutional protection for speech under the First Amendment, and has increased protections against discrimination over sexual orientation.

It may appear that one of the ironies of Justice Kennedy's jurisprudence is that, although a consummate Californian, he no longer represents the political and judicial temperament of his beloved state. Kennedy's opinions were formed in the days when California, politically and judicially, was emerging as a state "hard on crime, but tolerant on social issues." The state also produced political giants of national prominence from both parties: Governors Pat and Jerry Brown as Democrats, and Richard Nixon and Ronald Reagan as Republicans. Today, the state is more diverse and progressive-and solidly in the Democratic column.

But, in fact, Justice Kennedy's jurisprudence remains profoundly Californian: It is, by the standards of our times, generally not ideological or rigid, relatively careful, and open to international influences. He parses, as only a U.S. Supreme Court justice can, the weight of the past with the immediacy of the present. How very Californian.

Not that I agree with all of his decisions, but I am hard pressed to identify any other Californian who has so defined the nation's legal landscape in recent times.

Daniel Grunfeld, a partner at Morgan, Lewis & Bockius in Los Angeles, heads its West Coast litigation practice.

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Donna Mallard

Daily Journal Staff Writer

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