Judgeships could be in question if Newsom is recalled

A couple of recent polls that showed Gov. Gavin Newsom's chances of surviving the Sept. 14 recall election at close to 50-50 has prompted a wave of concern among Democrats and raised several questions about judicial appointments.

In state court, Newsom may need to use his power to nominate court of appeal justices sooner rather than later, or face the possibility his picks could be withdrawn by a new governor.

Democrats have focused more attention on the recall's implications in Washington, D.C., where they hold a vulnerable majority in an evenly divided Senate, with Vice President Kamala Harris able to break ties in favor of the Democrats and two independent allies.

Their concern is the ability of a Republican governor to appoint a senator in case of a vacancy, with many Democrats worried about the health of 88-year-old Sen. Dianne Feinstein. Her term ends in 2025.

A successful recall vote would have nationwide implications, said Lester F. Aponte, an attorney with Young & Zinn LLP and co-chair of the California Democratic Party's LGBTQ Caucus.

"There is definitely a lot of alarm about those polls," he said in a telephone interview Friday.

There has been less focus on the implications of a Newsom recall for state courts. As of Friday, there were 11 court of appeal vacancies and 83 superior court openings -- including appointments the governor announced July 9.

Newsom also nominated two new court of appeal justices and promoted two others to presiding justice that day. The Commission on Judicial Appointments will consider those nominations in late August.

The governor can appoint superior court judges until his final day in office, 38 days after the Sept. 14 recall election if he loses. Gov. Gray Davis did that after he was recalled in 2003.

Several attorneys with organizations backing Newsom said they hadn't thought about it at all, preferring to focus on getting out the vote.

A governor's nominees to the state Supreme Court and courts of appeal must be approved by the Commission on Judicial Appointments, which includes Chief Justice Tani G. Cantil-Sakauye and Attorney General Rob Bonta. That may be enough time for Newsom to fill the other appellate court vacancies and get his choices approved even if he is recalled.

If Newsom waits too long, a new governor could try to withdraw his nominees.

It's not clear how such a legal battle would play out, but there is a possible precedent, according to David S. Ettinger, an attorney with Horvitz & Levy LLP. When Jerry Brown was governor in 1979, Lt. Gov. Mike Curb -- a Republican -- took advantage of his absence from the state to nominate Armand Arabian to the 2nd District Court of Appeal.

When Brown returned from Washington, he withdrew the appointment and sued Curb. The state Supreme Court sided with the governor. In re: Governorship, 26 Cal. 3d 110 (S. Ct., filed Dec. 27, 1979).

Several attorneys with liberal interest groups said there is no push, or even a discussion, about encouraging Newsom to nominate judges more quickly.

Dan Schnur, a professor at UC Berkeley's Institute of Governmental Studies, said the odds remain in Newsom's favor due to California's strong Democratic tilt.

"But especially in off-year, low-turnout elections, it would be foolish to make absolute predictions," he said in a phone interview.