Will Newsom appoint an LGBTQ Supreme Court justice?

Two influential policy groups are urging Gov. Gavin Newsom to appoint a state Supreme Court justice who's a member of the LGBTQ community, renewing an effort that began under Gov. Jerry Brown and includes two well-known candidates.

A recent letter to Newsom from the LGBTQ legislative caucus calls Associate Justice Ming W. Chin's looming retirement a "historic opportunity" and touts California's "many highly qualified LGBTQ candidates, including appellate justices, trial judges, legal scholars, and attorneys."

"Nominating an LGBTQ justice would send a powerful message of California's leadership and values, and it would highlight the success California has achieved in making the state's judiciary better reflect its rich diversity," reads the letter, signed by state Sen. Scott Wiener of San Francisco and Assemblyman Todd Gloria of San Diego. "The time has come for an openly LGBTQ justice to sit on our state's highest court."

The LGBTQ-focused Stonewall Democratic Club echoed the request in a statement Wednesday that urged Newsom to "make history" through "the long-overdue appointment of the first lesbian, gay, bisexual, transgender or queer judge to the California Supreme Court."

"Stonewall is not suggesting diversity for the sake of diversity," reads the statement. "Rather, it is critical that a body that makes important decisions that affect all Californians reflects the diverse points of view encompassed by the people of our state."

The requests follow speculation during the final year of Brown's term that he would make the first LGBTQ appointment in his replacement of Justice Kathryn M. Werdegar, but Brown instead chose Joshua P. Groban, his senior advisor on policy and appointments.

Groban vetted approximately 600 judicial appointments in his eight years with Brown, and he's credited with diversifying the bench with more women, more racial minorities and more LGBTQ people.

Newsom's new judicial appointments secretary, former 1st District Court of Appeal Justice Martin J. Jenkins, didn't respond to requests for comment this week, but Newsom has further embraced Brown and Groban's diversity push in his first 15 superior court appointees, 10 of whom are women, with several ethnic minorities. He also in November nominated Teri L. Jackson to replace Jenkins on the appellate court, making her the first African-American woman to serve on the 1st District Court of Appeal.

Horvitz Levy LLP Of Counsel David S. Ettinger, author of the court watcher blog At the Lectern, said he expects Newson will adhere to the caucus' request, "that the appointee will be a sitting Court of Appeal justice, and that the leading candidate could be Justice Therese Stewart."

"I base these guesses on my knowledge of the Governor," Ettinger said in an email, cautioning he has no inside information about Newsom's decision.

"Newsom has long been an outspoken advocate for LGBTQ equality and has shown a penchant for taking high-publicity actions in that regard," Ettinger said, referencing Newsom's push for legalizing same-sex marriage while mayor of San Francisco.

Stewart, appointed in 2014 to the 1st District Court of Appeal, is one of two openly lesbian women on the appellate court. Her colleague, Justice James M. Humes, was appointed in 2012 as the first openly gay appellate justice. Both have long been mentioned as prime candidates for the high court, but Ettinger said Stewart could have an advantage because she was chief deputy city attorney in San Francisco when Newsom was mayor.

Also, Ettinger said, "Stewart's appointment would once again make the Supreme Court a majority-female court, something that might be appealing to Newsom."

Reached by email this week, Stewart said she doesn't "feel comfortable commenting on the topic."

California's superior courts have been more diverse for longer. Brown appointed the first openly gay judge in the United States, Stephen M. Lachs, who served on the Los Angeles County Superior Court from 1979 to 1999. At least 59 trial court judges identified as lesbian, gay, bisexual or transgender in 2018, according to the Judicial Council.

Young & Zinn LLP's Lester F. Aponte, president of the Stonewall Democratic Club, noted "at least 12 other states" as well as Guam and Puerto Rico have had an openly gay supreme court justice and said the governor likely "realizes that it's long overdue."

"California is certainly not leading in that respect," Aponte told the Daily Journal.

Stonewall's statement quoted Aponte describing LGBTQ people as having "long been marginalized and even persecuted by our legal system."

"Having our life experiences be part of the deliberations of the California Supreme Court is particularly important," Aponte said. "And for young LGBTQ+ individuals who aspire to the top of the legal profession, it would send a powerful message that, in California, anything is possible."

Ettinger said Newsom's father's experience as an appellate justice -- William A. Newsom Jr. spent 16 years with the 1st District Court of Appeal -- is one reason he believes the governor's appointee will be an appellate justice.

The other draws from Brown's appointments. All four had no prior judicial experience "and another non-judge appointee would leave the court with only two justices with prior judicial experience," Ettinger said.