Walters: Brown’s being tricky with Supreme Court appointment

Jerry Brown has become somewhat tricky in his later years, one of the many contrasts with how he functioned 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.

Brown has appointed three of the court's seven members, and 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 tended to be relatively young.

Why the delay? Brown's press office responds to that question 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 appellate court bench, 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 an active participant — a challenge to the public pension reform he signed into law and is personally defending.

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 three-member 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 Brown 1.0 appointees —Chief Justice Rose Bird and Justices Cruz Reynoso and Joseph Grodin — were ousted from the court by voters in 1986 on accusations that they had thwarted the will of voters by refusing to uphold death sentences for convicted murderers.

With Brown's three current appointees sitting on the court, having replaced mostly Republican-appointed members, its 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 vis-à-vis independent contractors.

Brown's fourth appointment would give him a solid majority that would, more than likely, restore the court's liberal ambiance that faded away when Republican governors filled vacancies, especially after the Bird-Reynoso-Grodin ouster in 1986.

Waiting until after the Aug. 30 ballot deadline makes particular political sense if, in fact, Brown intends to make a controversial appointment. So, one might wonder, who is the mystery person whose appointment Brown is clearly delaying for political purposes?

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's been some speculation that his final Supreme Court 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 adviser.

Such an appointment would certainly seal Brown's lasting influence on the nation's most important state court.

Dan Walters is a columnist for CALmatters, a public interest journalism venture committed to explaining how California's Capitol works and why it matters. For more columns by Dan Walters, go to calmatters.com/commentary

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