Gov. Jerry Brown lets state Supreme Court vacancy linger

The California Supreme Court, which is supposed to have seven justices, has had only six for more than seven months, an interval that may be unprecedented and is at least the longest in a half century. The reason is inaction by Gov. Jerry Brown.

Justice Joyce Kennard, the court’s longest-serving member, retired April 5, a decision she had announced nearly two months earlier. The vacancy gave Brown a chance to shift the composition of a court that has had only one Democratic appointee for more than two decades.

The governor moved quickly when another seat opened up with the announcement in June by Justice Marvin Baxter, the court’s leading conservative, that he would not seek another 12-year term. Five weeks later, Brown nominated Stanford law Professor Mariano-Florentino Cuellar, who was confirmed by a state commission and approved by the state’s voters Nov. 4 to take office in January.

But Brown — who at times in the past has questioned the need to fill vacant judgeships — hasn’t nominated Kennard’s successor or said why he hasn’t.

No picks yet

“Soon enough. I’ve not arrived at a pick yet,” the governor said in answer to a question on the court nomination at a news conference Nov. 5, the day after he coasted to re-election.

Governors make many appointments, but those to the state’s high court are among the most important and enduring. The court sits atop the nation’s largest judicial system, with more than twice as many judges as the entire federal judiciary. The vacancy has slowed the court’s output, increased the remaining justices’ workload and left potentially deciding votes up to a rotating group of temporary justices.

Brown’s nominee will require at least a month of review and a confirmation vote from the state Commission on Judicial Appointments. If confirmed, the new justice would take office immediately and would not appear on the state ballot until 2018.

Asked why the decision has taken so long, Evan Westrup, Brown’s press spokesman, issued this statement:

“To date, the administration has appointed more than 200 judges, including two to the Supreme Court. For every vacancy we fill, our focus is appointing the best possible candidate from a deep and diverse pool of applicants. That ultimately dictates timing.”

More than 50 appellate judges have filled in so far, hearing cases, signing onto majority or dissenting opinions and occasionally writing their own opinions. So far, none has cast the deciding vote in a 4-3 ruling. But because the cases do not become final for 90 days, the vacancy creates the possibility that a contentious decision could be reversed once a new justice takes office.

The court’s production has declined, with rulings in 83 cases in the 12 months ending Aug. 31, compared with 87 the previous year and 97 the year before. One reason, the court said in its most recent workload report, was “the lack of a full complement of permanent justices.”

Important work

It’s doubtful that the average Californian could identify the current chief justice, Tani Cantil-Sakauye, or any of her cohorts, let alone any of their decisions. But the court still tackles significant issues.

In the past six months, for example, the justices have allowed commissioned salespeople to collect overtime pay for working more than 40 hours in a week, barred suits against a nationwide food chain for sexual harassment by an employee at one of its outlets, and excused large retailers from keeping defibrillators on site to treat stricken customers. The court also turned down an appeal of a lower-court ruling allowing bond sales to begin on Brown’s high-speed rail project.

Comparing governors

Vacancies have usually been filled quickly in the past. When Chief Justice Rose Bird and Justices Cruz Reynoso and Joseph Grodin were voted out of office in 1986, Gov. George Deukmejian promoted his former law partner, Justice Malcolm Lucas, to chief justice in time to take office immediately and chose three new justices six weeks after their predecessors left office.

When Lucas and Justice Armand Arabian announced their retirements in 1996, Gov. Pete Wilson’s nominees — Justice Ronald George, elevated to chief justice, and Ming Chin and Janice Rogers Brown — were confirmed and sworn into office the day after their predecessors departed.

“We dealt promptly with vacancies at all levels. ... We made it a priority,” Wilson, governor from 1991 to 1999, said in an interview last week. He said his judicial appointments secretary prepared for possible state Supreme Court departures by screening potential successors in advance and having a list of the top three candidates available for the governor’s review.

The longest Supreme Court vacancy in recent decades lasted nearly seven months, the time between Janice Brown’s departure for a federal appeals court in 2005 and Gov. Arnold Schwarzenegger’s appointment of her successor, Justice Carol Corrigan.

Brown has no judicial appointments secretary but relies on “a number of advisers” to help him fill court vacancies, said Westrup, his spokesman. The governor also conducts a more personal review — both Justice Goodwin Liu and Cuellar have described extensive pre-nomination chats with the governor about their background and philosophy.

The current vacancy and its timing have prompted speculation that Brown was concerned with his re-election campaign, despite a 20-point lead in opinion polls.

Waiting game

“Obviously, he deliberately decided he would wait until after the first of the year to make the appointment,” said Gerald Uelmen, a Santa Clara University law professor and longtime chronicler of the state’s high court. For example, he said, Brown might have feared alienating the civil rights community if he filled the vacancy without appointing a black justice to a court that has not had an African American since 2005.

Brown has been a judicial trailblazer. He appointed the state Supreme Court’s first female, Latino and black justices: Bird, Reynoso and Justice Wiley Manuel. His trial court appointees included the nation’s first openly gay and lesbian judges, Stephen Lachs of Los Angeles in 1979 and Mary Morgan of San Francisco in 1981.

But the governor’s relations with the judicial system have not been smooth. He continued Gov. Arnold Schwarzenegger’s cuts in state funding for the courts for several years and did not fully restore the money when state revenue increased this year, leaving courtrooms still shuttered in many counties. He has also suggested the state had more judgeships than it needed.

“He wasn’t persuaded that the judicial branch was operating as efficiently as it could,’’ said J. Anthony Kline, a Brown appointee to the state Court of Appeal in San Francisco.

Uelmen said Brown’s skepticism may be resurfacing during the current Supreme Court vacancy.

“He’s always taken the position that the courts are overstocked,” he said.