California high court struggles as vacancy drags on
When the California Supreme Court voted 4-3 Dec. 21 to give ailing patients broad rights to sue pharmaceutical companies for defective warning labels on generic drugs, the deciding vote was cast by a judge from a lower court.
Louis Mauro, a justice on the state appeals court in Sacramento, was seated on the high court for the case by random selection to fill the vacancy created by Justice Kathryn Mickle Werdegar’s retirement on Aug. 31. Werdegar, a moderate Republican appointed in 1994 by then-Gov. Pete Wilson, her onetime law school classmate, had announced her departure plan on March 3, but Gov. Jerry Brown has not yet nominated her successor.
In an interview, Werdegar said she made the early announcement with some reluctance — she didn’t want to be regarded as a “lame duck” — but was hoping to avoid disruption on the court.
“I really wanted to give the
governor time to consider who he would like to name as a replacement ... to have a smooth transition,” she said. “I share the general bafflement as to what the delay has been.”
Brown has moved deliberately, at times, when filling other seats on the court. His most recent appointee, Justice Leondra Kruger, took office in January 2015, nine months after Justice Joyce Kennard retired. It was the longest vacancy in the court’s history.
But the current situation would seem to carry more urgency because Brown’s next selection will be his fourth to the seven-member court. It will be the first time Democratic appointees have held a majority since 1986, when Chief Justice Rose Bird and Justices Cruz Reynoso and Joseph Grodin, all named by Brown, were removed by the voters after a campaign that focused on their reversals of death sentences.
A new majority, chosen by Republican Gov. George Deukmejian, then moved the court to the right, upholding most death sentences and criminal convictions and overturning some past rulings that favored workers and consumers.
The court shifted toward the ideological center a decade later, particularly on social issues. Chief Justice Ronald George, a Wilson appointee, wrote the 1997 ruling overturning a state law that required parental consent for minors’ abortions and the 2008 ruling that legalized same-sex marriage in California. Werdegar was part of the 4-3 majorities in both cases.
The current chief justice, Tani Cantil-Sakauye, appointed by Gov. Arnold Schwarzenegger — who also named Mauro to the appeals court — has a generally moderate record and has been a vocal critic of the Trump administration’s immigration raids on courthouses.
But the court is still the only Republican-majority institution in a state that has become overwhelmingly Democratic.
Grodin, who during and after his court tenure has taught law classes at UC Hastings in San Francisco, said the current vacancy is having an impact.
“Important law is being made, sometimes in close cases, with the pro tem participation of judges who are not Supreme Court justices,” he said by email. Some closely decided rulings could be reconsidered and reversed once a seventh justice was appointed, he said, and “in addition, judging from the perspective of the Supreme Court is different from the perspective of a court of appeal justice.” Werdegar agreed. “On the good side, we get acquainted with our court of appeal colleagues, and that’s delightful,” she said. “The detriment is, you have someone who joins us for one case and is gone. Then you have another person. It doesn’t provide continuity” — particularly, she said, in close cases that her successor might vote to reconsider.
Cantil-Sakauye, in her annual meeting with reporters Dec. 11, said the court has suffered a loss of productivity from the vacancy, dividing Werdegar’s former workload among the remaining justices and trying to put off action on deadlocked cases.
“It’s difficult to operate without a seventh justice,” the chief justice said.
Longtime court-watchers are perplexed by the governor’s inaction in the 10 months since Werdegar announced her departure.
“I’ve been wondering the same thing myself,” said Gerald Uelmen, a retired Santa Clara University law professor and veteran chronicler of the state’s high court. He said there’s been speculation that Brown was preoccupied with other issues, like the two conferences he attended in Europe on climate change, but Uelmen noted that the governor on Dec. 23 appointed 33 judges to trial courts and two others to state appellate courts.
January will mark the fifth month of hearings in which Werdegar’s seat will be occupied by appeals court justices, selected in alphabetical order under a system the court adopted three decades ago. Previous rules authorized the chief justice to pick the temporary replacements, giving rise to occasional accusations of bias.
At least one more round of temporary replacements is likely before Brown’s nominee, whoever that is, can be confirmed by the state Commission on Judicial Appointments and seated on the court.
The governor has been a judicial trailblazer, having named the nation’s first openly gay and lesbian judges, and the state Supreme Court’s first female, black and Latino justices during his first stint in office from 1975 to 1983.
More recently, he appointed James Humes and Therese Stewart as the first openly gay and lesbian justices on a California appellate court, both as members of the First District Court of Appeal in San Francisco. One of them could be promoted to the high court, and commentators have noted that Humes was a top legal aide to Brown during his time both as attorney general and as governor.
But Brown has looked outside the judicial system for his three current Supreme Court appointees — Kruger, a former U.S. Justice Department attorney, and Goodwin Liu and Mariano-Florentino Cuéllar, both from the academic world. All three, like Brown, attended Yale Law School.
The longer the vacancy lasts, as Uelmen observed, the harder it gets to predict what Brown will do.
The governor’s office, asked for comment, stuck to generalities.
“There’s no set deadline/timeline for the governor to fill the vacancy,” spokesman Brian Ferguson said by email. “The aim of our office is to appoint the best candidate from a broad and diverse pool of applicants.”