Bob Egelko in the San Francisco Chronicle — “California Supreme Court has had a vacancy for over three months. Here’s how it impacts cases.” The article reports on the delay in replacing Justice Martin Jenkins, who announced his retirement over four months ago and left the court at the end of October: “Repeated inquiries to Newsom’s office about nominating a new justice were met with silence for several weeks, and then a statement by spokesperson Diana Crofts-Pelayo: that the governor ‘is continuing a thorough review of candidates to select the best successor to Justice Jenkins. We will provide an update once a decision is made.’ ”
The article also says that the Court of Appeal justices who temporarily fill the high court vacancy on cases argued after Jenkins’s retirement “could cast the deciding vote on the validity of a California law or the legality of a death sentence.” That’s possible, but unlikely. The court’s Internal Operating Practices and Procedures say the court doesn’t conference to consider scheduling a case for oral argument until a tentative disposition of the case “has been approved by at least four justices or is likely to be approved by four justices at the conference.” (Page 6.) And the “four justices” does not include a pro tem; the article reports that former Chief Justice Tani Cantil-Sakauye “said the [pro tem] justice isn’t seated on the court until a majority of its permanent members have tentatively agreed on a ruling, which occurs before the case is argued in public.”
It’s not that a pro tem justice has never been in the majority on a 4-3 case, but I don’t think it’s happened in over eight years.
Thus, a negative effect of a vacancy is not so much the chance of a pro tem casting a deciding vote on a case, but that the court will delay deciding cases in which the remaining six permanent justices are tentatively evenly divided. (See also here.)
A pro tem justice is more likely to be decisive if the permanent justices are split 3-3 on whether to grant a petition for review. (See here.) An evenly divided court can put off an oral argument indefinitely, but there’s a maximum 90-day deadline for ruling on petitions for review. (Rule 8.512(b).)
A vacancy doesn’t delay decisions in just evenly split cases. According to the article, Cantil-Sakauye said “ ‘losing one of seven makes a big difference’ in the court’s output.” Similarly, former Justice Ming Chin told Egelko, “[t]he temporary replacement justices ‘do not write opinions, so that work has to be shared by the six remaining chambers.’ ”
Whom might Newsom name to the court? David Carrillo, Stephen Duvernay, and Brandon Stracener write in the Daily Journal — “Gov. Newsom will probably go to the appellate bench for the next SCOCA justice.” “Considering history and the widely reported indications of the governor’s future aspirations, the most likely choice is a centrist Court of Appeal justice who will bang out lots of opinions and generate zero headlines, doing no harm to any future political campaigns,” they say. “Aside from being the right political move, that path would be consistent with past practice for this and many other modern governors.”
[February 17 update: Cheryl Miller had this last week in The Recorder — “As Newsom Makes His Name Out of State, California’s Supreme Court Awaits New Justice.” The subheading for the article is, “Associate Justice Martin Jenkins left office last year. Will his replacement be chosen through the lens of presidential ambitions?”]
Related:
“Newsom pick could shift balance in criminal cases on California Supreme Court”
“2028 ambitions loom over Newsom’s next state Supreme Court pick”
