Brown’s long delay filling a state Supreme Court vacancy stirs speculation

Does Gov. Jerry Brown's long delay in picking a new California Supreme Court justice mean he is leaning toward a controversial choice?

That's a leading question among court watchers as a pair of milestones approach. On Aug. 31, it will be one year since Justice Kathryn M. Werdegar left the court, in a move she had announced nearly six months earlier.

But the more significant milestone comes after the fall ballot is set in mid-August. A nominee confirmed prior to that date would need to face voters in November. A nominee confirmed afterward would not be on the ballot until 2022, the date of the next scheduled gubernatorial election.

The scenario holds that delaying the election test by four years would give a controversial nominee a chance to establish a track record on the court and let voters' memories of any disputations around the appointment fade. Some have even speculated off the record that he would wait until after the November election itself, in order to avoid the pick becoming a campaign issue.

"I have absolutely no inside information," said David Ettinger, of counsel at Horvitz & Levy LLP and the author of the firm's At the Lectern blog, which covers the court. "I have heard from other people who also have no inside information that we're talking about his wife as a possible appointee."

Anne Gust Brown is a former general counsel at Gap Inc. who, at 60, is 20 years younger than her husband. There has also been speculation that Brown would appoint himself or Josh Groban, his senior advisor on judicial appointments.

Ettinger said either Gust Brown or Groban would make "excellent" justices. But he added that either appointment could be further delayed because Brown doesn't want to lose his closest advisers yet, especially as he works to appoint judges to dozens of vacant seats before leaving office early next year.

Half a century ago, Brown got a close-up view of the blowback appointing a family member could create. In 1964, Gov. Pat Brown appointed his own brother, Harold C. Brown, to the San Francisco County Municipal Court, then to the 1st District Court of Appeal two years later.

Republicans criticized the moves, though this was tempered by the fact that Harold Brown was a Republican.

Brown's delay has changed ideas about who may be a frontrunner.

"Last summer, the smart money was on [1st District Court of Appeal] Justice James Humes," said David A. Carrillo, executive director of the California Constitution Center at UC Berkeley School of Law. "But there's no reason to delay that appointment. A year on, people are starting to wonder if it's someone who might be a ballot risk."

Humes had been the popular choice for months. Brown appointed him chief deputy attorney general when he ran the Department of Justice, then named him to the Court of Appeal in 2012. This made him the first openly gay appellate justice in state history, and the focal point of a campaign last year by LGBT groups urging Brown to name a gay justice to the high court.

Last month, Chief Justice Tani Cantil-Sakayuye promoted Humes to administrative presiding justice of the 1st District. This has added to growing rumors that Humes is out of the running.

The current vacancy became a record in April. But Brown has had other long lagtimes, including the nearly eight months he waited before naming Leondra R. Kruger to the high court in late 2014.

Paul D. Fogel, an appellate partner with Reed Smith who has argued before the state high court on several occasions, said the election-related delay is one of "a number of circulating theories about why he hasn't named anybody."

But Fogel noted that Kruger was named just after the 2014 election, allowing her to avoid the ballot that year.

She was a controversial liberal pick to some. At 38, she was one of the youngest-ever nominees. One letter to the Daily Journal at the time labeled her "the new Rose Bird," invoking the Jerry Brown-nominated chief justice who lost re-election in 1986 over her stand against the death penalty, among other issues. According to the high court, Kruger and Justice Carol Corrigan recently filed papers to run for new 12-year terms this fall. In Kruger's case, voters will now evaluate a justice with four years of experience and a reputation for being tougher on criminal defendants than some of Brown's other picks.

There are two other things that court watchers appear to widely agree on. First, Brown's delay is part of a larger strategy. He already holds the record for most appointments to the court, with 10, and knows the process as well as anyone.

Second, they're hoping the seat gets filled soon. This could allow the court to take more cases and avoid the possibility of a 3-3 tie being broken by a temporary pro tem justice.

"It's frustrating," Fogel said. "That's not a great way to run a Supreme Court."