Long delay by Brown in filling high court spot
Governor has waited over a year to name new justice, puzzling the legal community.
SAN FRANCISCO — A clock on a legal blog ticks away the minutes, days and hours that Gov. Jerry Brown has had to ponder whom to appoint to the California Supreme Court.
It is one year, five months, two weeks and counting since Justice Kathryn Mickle Werdegar announced her retirement, presenting Brown with an opportunity to appoint his fourth justice to the sevenmember court.
Officials say it is the longest a seat has remained unfilled in the court’s history, and no one outside Brown’s inner circle seems to know why he has waited so long, or whom he might turn to in the final months of his fourth and final term.
“This is not something that I want to do too quickly,” Brown said in January. “I’ve appointed three, the fourth could be very decisive.”
Brown’s failure to fill the spot for so long has puzzled the legal community and led to widespread speculation that he may be planning to appoint someone from his administration whose services he will need until he leaves office.
“It would make sense as to why there has been a delay,’” said appellate lawyer David Eittinger, who writes a law firm blog about the court.
Court employees say the vacancy has reduced productivity and caused the court to delay ruling on some important cases in which the justices are tied 3 to 3.
“It’s somewhat like a seven-member crew team rowing with only six folks who use the oars,” said one staff member who was not authorized to comment and spoke on the condition of anonymity.
Court of Appeal justices have been filling in, but they do not write majority opinions.
The length of the vacancy also has spurred speculation that Brown may want to give his next appointee four years on the court before the new justice has to face voters.
Newly appointed justices appear on the ballot for retention elections in the first gubernatorial election after their appointment. If Brown had filled the slot by now, the new justice would have appeared on this November’s ballot. They serve 12-year terms.
“If they go before voters without a chance to develop a track record, who knows?” Ettinger said. “That could be a problem.”
The delay means the next appointee “will get a fouryear free ride without having to face the voters,” said Gerald F. Uelmen, professor emeritus at Santa Clara University School of Law.
An aide to Brown, who declined to speak on the record, called speculation that the appointment was being timed to the election schedule “bunk.”
A spokesman refused to comment on the possible candidates.
Though some appellate judicial elections have been close, only once in state history have voters refused to retain a justice.
That occurred in 1986 when voters rejected former Chief Justice Rose Bird and two other Brown appointees to the state high court.
Legal analysts speculate that possible administration choices include Joshua Groban, a Democrat and the governor’s senior advisor for policy and appointments.
Groban, 45, is a key player in making judicial picks, and analysts said Brown might be postponing the appointment so he can continue to benefit from Groban’s guidance. Last week there were 59 vacancies statewide, and Brown wants to fill them all before stepping down.
Groban, from Los Angeles, served as legal advisor to Brown’s 2010 campaign and teaches state appellate practice at UCLA’s law school. Its website says his scholarship has focused on white-collar criminal law, government law, appellate law and civil litigation.
He grew up in Del Mar, graduated from Stanford and received a law degree from Harvard. He is married to television writer and novelist Deborah Schoeneman. Before joining the governor’s office, Groban practiced civil litigation in Munger, Tolles & Olson’s Los Angeles office.
In a 2011 interview with a Del Mar publication, Groban called Brown “the smartest boss I ever had” and said the two regularly interacted on a variety of subjects.
Another possible candidate mentioned by analysts is Peter Andrew Krause, whom Brown appointed legal affairs secretary in 2014. Krause served under Brown in the attorney general’s office before following him to the governor’s office.
Krause, 48, has handled Brown’s commutations and pardons, which have to be submitted to the California Supreme Court for review if the offender has been convicted of more than one felony. Krause is registered as having no party preference. He previously was registered as a Republican.
Some analysts have even speculated that Brown may intend to name his wife, Anne Gust Brown, who serves as his special counsel.
Others dismiss that possibility, noting that the couple have been almost inseparable for more than a decade and a court appointment would require her to spend much more time away from him.
During a reception a few years ago at The Times’ Sacramento bureau, Brown was asked about possible candidates for the court.
He called out to his wife with a grin and asked her if she wanted to join the high court.
She smiled and shot back: “I thought was I was going to be a farmer’s wife.” Brown chuckled.
Brown and previous governors have rewarded top advisors with judicial appointments in the past, though they have rarely appointed them directly to the state’s top court.
Brown appointed Jim Humes, his executive secretary in the governor’s office and his chief deputy in the attorney general’s office, to the San Francisco-based Court of Appeal in 2012.
Brown was widely expected to elevate Humes to the Supreme Court, but the long delay in filling the current vacancy has dampened those expectations.
Brown’s next choice will give the court a majority of Democratic appointees for the first time in decades, though they are unlikely to vote as a bloc.
His first three appointees during his most recent terms — Justices Goodwin Liu, Mariano-Florentino Cuéllar and Leondra R. Kruger — often disagree.
None of Brown’s appointees had previous judicial experience, and all were graduates of Yale Law School, Brown’s alma mater.
“He makes outside-ofthe-box appointments,” Ettinger said.
‘This is not something that I want to do too quickly. I’ve appointed three, the fourth could be very decisive.’ — Gov. Jerry Brown, in January