At The Lectern
October 28, 2017
By Horvitz & Levy LLP
It’s been two months since Justice Kathryn Werdegar left the Supreme Court, and almost eight months since she announced her retirement. But Governor Jerry Brown has yet to name a replacement, although he probably could have done so any time after Justice Werdegar’s announcement. The prolonged vacancy has likely caused at least some disruption in the court’s work, including the need to temporarily assign Court of Appeal justices to rule on cases. Next month will be the third oral argument calendar with pro tem justices, and the court will soon announce its December calendar with more temps. If recent history is a guide, the wait for a new justice might not end in the near future.
The last time Governor Brown filled a vacancy — in 2014 — was when he appointed Justice Leondra Kruger to take Justice Joyce Kennard’s place. The appointment came more than nine months after Justice Kennard announced her retirement, and nearly eight months after her retirement was effective. There were seven oral argument calendars with pro tem justices.
Three years earlier, Governor Brown had been a little faster in replacing Justice Carlos Moreno. Justice Goodwin Liu was appointed almost seven months after Justice Moreno announced his retirement, and five months after the retirement was effective. That delay necessitated five calendars with pro tems.
There was one other occasion when Governor Brown named a Supreme Court justice during his second stint as the state’s chief executive. But that one is not predictive of the timing of his next pick, because the Governor was then under a constitutional deadline to act. Unlike Justices Moreno and Kennard, Justice Marvin Baxter retired by simply allowing his term to expire without seeking reelection. Under those circumstances, article VI, section 16(d)(1), required Brown to nominate a candidate by a date certain that was only three months after Justice Baxter announced his retirement. Brown acted quickly, nominating Justice Mariano-Florentino Cuéllar just one month after Baxter’s announcement. Because of the constitution, Cuéllar then had to wait more than five months before actually joining the court. (For a bit more on the distinctions between appointments and nominations, and between confirmation and retention elections, see here.)
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