On Day 300 since Justice Kathryn Werdegar announced her retirement, Bob Egelko writes in the San Francisco Chronicle about Governor Jerry Brown’s delay in naming her replacement. The article notes that one consequence of the delay is the interim use of randomly selected Court of Appeal justices as temporary high court members and that one pro tem justice cast a deciding vote in the T. H. v. Novartis Pharmaceuticals Corp. case, which is an institutional problem. (See here, here, and here.)
Since Justice Werdegar retired, there have already been 26 cases argued with pro tems, there will be another eight tomorrow and Thursday, and the court will soon announce its February calendar with more.
It didn’t have to be this way. Justice Werdegar left the court four months ago, but announced her retirement plans almost six months earlier than that, and Governor Brown probably could have appointed a new justice even before there was an empty seat. In fact, the Chronicle article quotes Justice Werdegar as saying she gave the Governor a long lead time for the very purpose of avoiding a prolonged vacancy. Although she had been hesitant to be regarded as a “lame duck,” she said, “’I really wanted to give the governor time to consider who he would like to name as a replacement . . . to have a smooth transition,’” and she “‘share[s] the general bafflement as to what the delay has been.’”
