Pressure mounts on governor to name LGBTQ justice to state high court

Pressure is mounting on Gov. Gavin Newson to appoint the first openly LGBTQ justice to replace California Supreme Court Justice Ming W. Chin, according to some close to the administration. Meanwhile, the court could soon see another retirement, according to a source speaking on background.

Chin announced in January he would leave the court on Aug. 31 after almost 25 years. According to some familiar with the process, the Commission on Judicial Nominees Evaluation has been actively vetting candidates for months.

Two justices on the 1st District Court of Appeal came up repeatedly among those reached for this story: Justine Therese M. Stewart of Division 2, and Presiding Justice James M. Humes of Division 1.

Humes became the first openly gay justice in state history when Gov. Jerry Brown appointed him to the appellate court in 2012. Brown appointed Stewart, the first openly gay woman appellate justice, in 2014. Both names came up as possible high court nominees when Brown picked Justice Joshua P. Groban in 2018.

"When Chin first announced his retirement plans, there was talk that Newsom might appoint the first openly gay Supreme Court justice," said David S. Ettinger, of counsel with Horvitz & Levy LLP. Ettinger recently asked the administration about the nomination and posted the response on the firm's At the Lectern blog.

"Governor Newsom is reviewing the credentials of several highly qualified candidates to fill the vacancy on the California Supreme Court that will occur as a result of Justice Chin's impending retirement," Newsom's press secretary, Vicky Waters, said on Monday. "The candidates under consideration reflect the broad diversity of our state and include sitting judges and experienced trial and appellate lawyers. They are well regarded by the bench and bar for their intellectual rigor, legal aptitude, integrity, collegiality, and for their demonstrated record of service to the residents of California. Governor Newsom expects to announce his nominee to the California Supreme Court in the next few months."

The names of two other openly gay jurists have also come up. Justice Marsha G. Slough on the 4th District Court of Appeal, Division 2 and U.S. Judge Michael W. Fitzgerald of the Central District of California.

Newsom's judicial appointments secretary, Martin J. Jenkins, a former federal judge and state appellate justice, is also reportedly under consideration.

LGBTQ groups throughout the state have been pushing for years to get an openly-gay justice on the court. This movement picked up steam after Chin announced his departure.

"The LGBTQ community depends on the judicial system to enforce our civil rights and to ensure we aren't criminalized," Sen. Scott Wiener, D-San Francisco, chair of the California Legislative LGBTQ Caucus, wrote in a Feb. 13 letter to Newsom. "Representation matters, and I urge the governor to do what he has always done: Stand up for LGBTQ people."

Ettinger said his guess was that Stewart was the most likely pick. He noted she served as chief deputy San Francisco city attorney during Newsom's time as mayor. She litigated two major same-sex marriage cases: In re: Marriage Cases (2008) 43 Cal.4th 757 and Perry v. Brown (9th Cir. 2012) 725 F.3d 1140.

Those cases came out of the aftermath of then-Mayor Newsom's decision to order the city-county clerk to begin issuing marriage licenses to same-sex couples. In re: Marriage Cases started when Attorney General William W. Lockyer sued, leading the California Supreme Court to legalize gay marriage in 2008. That led to Proposition 8, in which voters banned same-sex marriage, which led to Perry v. Brown, when the state refused to defend the new law in court.

Through her clerk, Stewart declined to comment.

Humes has more history with Brown, having served as chief deputy attorney general when Brown was California attorney general, and executive secretary for legal affairs when Brown was governor. Humes' staff did not reply to an email seeking comment.

With Chin's departure, Justice Carol A. Corrigan, 71, will be the longest-serving member of the court. According to one source, she is close to Chin and thinking of leaving after almost 15 years on the court.

David A. Carrillo, executive director of Berkeley Law's California Constitution Center, added another name he's been hearing.

"I'd expect and hope for someone who mirrors Justice Chin's qualifications with a traditional judicial resume: trial and appellate experience as a litigator and on the bench, like Justices Terry Stewart, Jim Humes or Jon Streeter," Carrillo said in an email. "I doubt an academic like me will get the call."

That's a reference to Gov. Jerry Brown's four appointments to the court, all of whom had law school teaching experience but had never before served as a judge. Justice Jon B. Streeter is also on the 1st District Court of Appeal, in Division 4.

In another interesting contrast, many of the people believed to be on Newsom's shortlist are in their 60s. All four of Brown's appointees are still in their 40s.

Brown made a point of increasing the diversity of the bench, including nominating black, Latino and Asian justices to the high court. Among the names reportedly under consideration, Jenkins is black and Streeter is biracial.

Joseph W. Cotchett Jr., a partner with Cotchett Pitre & McCarthy LLP and prominent Democratic donor, said he is among those who have been pushing Newsom to pick a gay justice.

"I believe very strongly that Newsom should appoint a member of the LGBTQ community to our Supreme Court," Cotchett said. "There are outstanding LGBTQ lawyers in our state and the time has come to have a member of this community on our top court."

The November election could potentially give Newsom yet another pick. Justice Leondra R. Kruger has repeatedly come up as a name on prospective Democratic presidential nominee Joe Biden's short list of U.S. Supreme Court nominees. She clerked for Justice John Paul Stevens and argued 12 cases before the court as an assistant U.S. solicitor general.

One thing everyone seems to agree on is that Newsom won't sit on his choice as long as Brown did when he named Groban, despite the lack of attention the nomination has garnered during a chaotic year.

"I'm sure the court doesn't want to go through another 16-month vacancy," Ettinger said. "My sense is they would prefer to have no vacancy at all."