On March 8, 2017, Kathryn Mickle Werdegar, associate justice of the California Supreme Court, announced that after 23 years on the bench she would retire in the summer and give someone else “that privilege and opportunity.”
Werdegar’s timing gave Gov. Jerry Brown almost six months to make his fourth appointment to the court before oral arguments would resume in the fall. Shortly after her announcement, Werdegar told The Recorder she was “confident that the governor does not need my guidance” picking a successor.
“He has given us three wonderful justices that I’ve had the pleasure to serve with,” she said. “Like everyone else, I look forward to seeing whom he selects.”
Almost one year to the day after Werdegar announced her retirement, she, like everyone else in the California legal community, continues to wait for Brown to act. Over the last 12 months, the governor has appointed 117 trial court judges. He’s filled seven vacancies in the courts of appeal. But he’s given no hint when he will make his next Supreme Court pick, a selection that will give him four appointees on the seven-member court.
Asked about the delay in January while he was unveiling his budget proposal, Brown said the choice is “not something that I want to take too quickly because it’s very important.” The assembled press corps chuckled.
“I’m searching my mind very carefully,” Brown said. He continued: “I’ve appointed three and the fourth could be very decisive, so I want to understand how that … could work.”
So what—or who—is Brown waiting for?
The question leads to a seemingly fruitless parlor game since the governor’s most recent three Supreme Court picks—with the possible exception of Mariano-Florentino Cuellar—were not on anyone’s radar.
James Humes, presiding justice of the First District Court of Appeal’s Division One in San Francisco, is almost always mentioned in legal circles as the front-runner. He spent a career in the state attorney general’s office and served as Brown’s chief deputy in the Department of Justice. Humes then followed Brown to the governor’s office in 2011, serving as his executive secretary for two years before he joined the appellate court.
Lamar Baker, an associate justice on the Second District Court of Appeal in Los Angeles, could be another likely contender. Like Brown’s last Supreme Court pick, Justice Leondra Kruger, Baker is young (39) and a former Obama administration lawyer. And like Kruger, Cuellar, Justice Goodwin Liu and, yes, Brown himself, Baker is a Yale Law School graduate. He’s also tied to a Los Angeles-based court, an appealing trait for those who would like to see Southern California represented more on a high court dominated by Northern California justices.
One question arises, though: If Brown had wanted to elevate either appellate justice to the high court, what’s stopped him?
Conventional wisdom holds that the governor’s focus has been trained elsewhere for months. Last year, Brown traveled the globe, from Germany to Russia, championing the state’s fight against climate change. Then he had to prepare his 2018-19 budget. In January, Brown delivered his last-ever State of the State address.
Brown has been deliberate in choosing Supreme Court nominees. He took nine months from the time Associate Justice Joyce Kennard announced her retirement in 2014 until he nominated Kruger. It was a seven-month wait for Liu’s selection. The wait for Werdegar’s replacement is now in record-setting territory.
“The crazy thing is, Justice Werdegar purposely gave [Brown] five months lead time for the express reason of not leaving the Supreme Court short-handed,” said Horvitz & Levy partner David Ettinger, whose “At the Lectern” blog tracks the state Supreme Court.
The wait has fueled some speculation that Brown is waiting for someone to finish a term in office, or work in his administration or a law school calendar. After the governor chose Xavier Becerra last year to become attorney general, the Los Angeles Times reported that Brown had first offered the job to his wife and top adviser, Anne Gust Brown, and to his executive secretary, Nancy McFadden. Both are active members of the state bar.
Brown’s office has provided no clues to the governor’s progress, saying only that there is no timetable for a pick.
The Vacancy’s Impact
The Supreme Court has felt the impact of the long-standing vacancy.
Fifty-six pro tem justices, pulled from the appellate court ranks, have worked on high-court cases over a six-month period, according to Ettinger. The court has a packed docket this month with 14 cases, all of which will rely on a pro tem justice.
Chief Justice Tani Cantil-Sakauye declined to be interviewed for this story. She told reporters in December that the six remaining justices have felt the burden of the vacancy, having to divide the seventh justice’s workload among themselves.
“It’s difficult to operate without a seventh judge,” she said then. “It changes our productivity.”
It’s unclear if the court has been delaying highly controversial cases to avoid a situation where a temporary justice forms the majority in a 4-3 split.
That’s already happened once.
In December, Justice Louis Mauro of the Third District Court of Appeal joined three other justices in T.H. v. Novartis Pharmaceuticals, holding that drug companies can be sued for failing to warn consumers about the risks of generic versions of their products.
“In close cases, if one of the pro tems is part of the majority of four, that really doesn’t give full guidance as to what a fully staffed court might do in the future,” said Carlos Moreno, a former California Supreme Court justice. “The opinion has kind of questionable standing. The court has not spoken with a full voice.”
Brown has said that his fourth, and likely last, nominee to the current Supreme Court could prove “decisive” and merits extra scrutiny. That may not be the case, however. California’s high court is far less partisan or predictable than its nine-justice federal counterpart.
In a 4-3 opinion handed down Feb. 26, the court held that sentencing two juveniles each to 50 years in prison amounted to cruel and unusual punishment. Liu was joined in the majority opinion by Justice Ming Chin, arguably the most conservative member of the court.
Brown appointees Liu, Cuellar and Kruger are not a consistent voting bloc. The court last month declined to review an appellate court ruling holding lead paint manufacturers liable for hundreds of millions of dollars in remediation costs. Liu and Kruger provided the only votes to grant the petition for review.
Reed Smith appellate partner Paul Fogel said Liu, Cuellar and Kruger have led a “subtle march” to the left on certain issues, such as expanding plaintiffs rights and restricting the use of arbitration.
But Fogel said he’s not convinced a fourth Brown justice will turn that march into a sprint. “If [the pick] is Humes, he’s very unpredictable,” Fogel said. “He’s moderate.”