Viewpoints

Is Jerry Brown shielding his Supreme Court pick from voters? And could it be his wife?

New state Supreme Court Justice Leondra Kruger, second from right, is congratulated as Gov. Jerry Brown, far right, applauds in January 2015. Brown has another vacancy to fill, but is in no hurry.
New state Supreme Court Justice Leondra Kruger, second from right, is congratulated as Gov. Jerry Brown, far right, applauds in January 2015. Brown has another vacancy to fill, but is in no hurry. Sacramento Bee file

Gov. Jerry Brown has become somewhat tricky in his later years, one of the many contrasts with how he acted during his first governorship four decades ago.

We may be seeing a striking example of his latter-day demeanor in his months-long delay in filling a vacancy on the state Supreme Court.

 
Opinion

Brown has already appointed three of the court’s seven members. Filling the vacancy left by the retirement of Kathryn Mickle Werdegar 17 months ago would give him a majority whose influence would be felt for decades to come, since his appointees have been relatively young.

So why the delay?

Brown’s press office responds by quoting Brown’s own words from last January: “This is not something that I want to do too quickly... I’ve appointed three. The fourth could be very decisive.”

Whatever the reason, having just six members, even with periodic pinch hitters from the state appeals court, has left a number of major cases hanging, according to Chief Justice Tani Cantil-Sakauye.

Ironically, Brown himself has complained that the court is taking too much time to decide a case in which he is personally involved – a challenge to the public pension reform he signed into law.

It’s very likely that the long delay is a tricky bit of political business by Brown, whose second governorship will end in January. Had Brown named a new justice earlier, and he or she been confirmed by the Commission on Judicial Appointments, his appointee would have to appear on the November ballot for approval by voters.

The deadline for placing candidates’ names on the ballot is Aug. 30, so by waiting until after that date, but making the nomination before he leaves office in January, he protects his choice from facing voters until the next non-presidential election in 2022.

Brown is acutely aware of what can happen when Supreme Court justices face confirmation by voters. Three of his appointees during the 1970s -- Chief Justice Rose Bird and Justices Cruz Reynoso and Joseph Grodin – were ousted from the court in 1986 after criticism that they had thwarted voters’ will by refusing to uphold death sentences for convicted murderers.

With Brown’s three current appointees, the court’s rulings have been drifting leftward in recent years, most noticeably upholding union-backed suits to block a city employee pension reform in San Diego and tighten the definition of employees versus independent contractors.

Brown’s fourth appointment would give him a solid majority that would, more than likely, restore the court’s liberal tint that faded away when Republican governors filled vacancies.

Waiting until after the Aug. 30 ballot deadline also makes particular political sense if Brown intends to make a controversial appointment. So who is the mystery person? Will be it be just another young Ivy League-trained liberal in the mold of his previous appointees -- or someone out of left field, as it were?

There is some speculation that his final appointee might be a University of Michigan Law School graduate named Anne Gust Brown, who was a corporate attorney before marrying the former and future governor of California and becoming his closest political confidante and advisor.

That would certainly seal Brown’s lasting influence on the nation’s most important state court.

Dan Walters is a columnist at CALMatters. He can be contacted at dan@calmatters.org.

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