California Supreme Court

By Bob Egelko
Monday, November 17, 2014

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.

To read entire story, click here.