Brown comes down to the wire in much-delayed state high court choice

The longest-running vacancy in state Supreme Court history has now passed 14 months. But now Gov. Jerry Brown really does face a deadline: on Jan. 7, Lt. Gov. Gavin Newsom will be sworn in to replace him.

“We’re all waiting for that Supreme Court justice, unless he wants to give it to me, which I’m happy to consider,” Newsom joked at a news conference in San Francisco on Thursday morning.

“My guess, based on nothing other than the calendar, is that we’ll see an appointment before Thanksgiving,” said David S. Ettinger, of counsel at Horvitz & Levy LLP.

Ettinger writes the firm’s At the Lectern blog, covering the high court. In a Thursday post, he noted it has taken between 28 and 37 days for Brown’s three most recent nominees make it through a process that includes a hearing and approval by the Commission on Judicial Appointments.

As to who that nominee might be, Ettinger’s Horvitz colleague Kirk C. Jenkins summed up the thoughts of many.

“The people who know aren’t saying and the people who are saying don’t know,” said Jenkins, a partner at the San Francisco appellate firm. “I don’t put a lot of credence into anyone’s speculation.”

Such speculation abounds anyway. Thursday marked 20 months since Justice Kathryn M. Werdegar announced her pending retirement.

When Aug. 30 passed this year, it meant that the nominee wouldn’t have to face voters until 2020. The next day marked a full year since Werdegar stepped down. When Election Day itself passed, it fueled rumors Brown thought his pick would be a distraction to voters.

The most persistent talk has swirled around his wife, former Gap Inc. general counsel Anne Gust Brown, top aides or even himself. A more recent addition to the rumor mill is the idea that Justice Ming W. Chin, appointed in 1996 by Republican Gov. Pete Wilson, will also step down so Brown, rather than Newsom, will pick his successor.

At a post-election news conference Wednesday morning, the outgoing governor once again declined to comment on the vacancy, saying “I’ve never regretted an appointment I haven’t made.”

He did hint that some of the Court of Appeal justices who have sat in on cases to fill out the court have gotten a chance to “try out” for the position. But one court watcher pointed to a dearth of opinions written by these pro tems.

“As a trial system, I’m not sure that it’s a particularly good one,” said David A. Carrillo, executive director of the California Constitution Center at UC Berkeley School of Law. “You’re not getting a lot of information about how they would behave as a full-time member of the court.”

According to an Oct. 24 analysis on SCOCAblog, a website covering the state high court run by staff at UC Berkeley School of Law and the UC Hastings Law Journal, pro tems have only written two of 117 opinions since Werdegar’s departure. Neither wrote for the majority.

That analysis, written by Cooley LLP associate and UC Berkeley law school graduate Brandon V. Stracener, also found that Brown’s previous three picks — Goodwin H. Liu, Mariano-Florentino Cuellar and Leondra R. Kruger — often did form a voting bloc. He wrote this suggests a fourth Brown nominee could turn the body into a true “Brown Court.”

But Jenkins, who frequently writes about the court for the Daily Journal, said the three are not “cookie cutters of each other.”

“You can clearly see distinctions between their views,” Jenkins said.

Voters re-elected Kruger and Justice Carol A. Corrigan with over 71 percent of the vote on Tuesday.

Some LGBT groups mounted a last-minute online effort against Corrigan over her votes on same-sex marriage cases in 2008 and 2009. According to the latest returns, Corrigan received 67,309 more yes votes and 34,320 more no votes than Kruger.