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Editorial: No way to defend Brown’s record delay in filling California Supreme Court vacancy

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It’s been more than 17 months since California Supreme Court Justice Kathryn Mickle Werdegar announced that she was retiring as of Aug. 31, 2017. As the San Francisco Chronicle reported, Werdegar — a moderate judge appointed by Republican Gov. Pete Wilson — gave Gov. Jerry Brown plenty of advance notice in the hopes that he would choose a replacement who could join the seven-member high court, keep it at full strength and prevent major issues from going undecided because of 3-3 tie votes.

“Lacking a permanent member of the court is disruptive,” Werdegar cogently told the Chronicle.

Yet, without explaining his thinking, Brown has chosen no one to replace her. The assumption among political observers is that the governor wants to avoid having his newly chosen justice face a public confirmation vote in November, as would have been required if his nominee was approved by Aug. 30, the final day candidates can be put on the fall ballot. Even if Brown announced his choice this week, it’s unlikely the nominee could be reviewed and advanced by Aug. 30 by the state Commission on Judicial Appointments, a three-member panel led by Chief Justice Tani Cantil-Sakauye. That means the governor’s nominee, if approved by the commission, would face a public confirmation vote in 2022.

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But this explanation should satisfy no one. Brown’s history of having three of his high court picks swept out of office by voters in 1986 should not lead him to try to delay Californians from being able to weigh in on his picks. There was nothing nefarious about the ouster 32 years ago of state Justices Rose Bird, Joseph Grodin and Cruz Reynoso. It reflected the fact that the three had overturned dozens of death penalty convictions on flimsy grounds, reflecting their personal views — not the Legislature’s or voters’ — that the death penalty is an abomination. No other state justices have been removed since 1934, when voters amended the state Constitution to mandate that appointed appellate judges be reconfirmed periodically by voters.

This history should have led Brown to nominate a highly qualified judge, law professor or attorney long ago and then to assume voters would give the individual a fair chance. Instead, the governor’s machinations inevitably have produced speculation that he wants to make a radical choice who will join with his other three confirmed nominees (Mariano-Florentino Cuéllar, Goodwin H. Liu and Leondra R. Kruger) to create a majority on the seven-member court to advance a specific policy agenda — one that couldn’t make it through the Legislature or gain passage in a ballot initiative. It’s worth noting that all three voted in June 2016 to allow Brown to “gut and amend” what became Proposition 57 to change its focus from juvenile justice reform to changes in pardon procedures — without the normal vetting. This decision was disastrous. The amended ballot measure, which voters approved in November 2016, classified several sex crimes, including rape of an unconscious person, as nonviolent, and thus subject to early parole consideration. This debacle should have chastened the governor — not made him ready for new machinations involving the high court.

Of course, it’s possible that there’s less here than meets the eye. Brown’s three confirmed nominees have hardly seemed inclined to radicalism. And as the Chronicle noted, Brown was also responsible for the second longest high court vacancy in 2014 and 2015, when he took nine months to replace retired Justice Joyce Kennard with Kruger. Perhaps the governor has been quietly interviewing candidates and will announce his decision soon.

Last month, he urged the court to hold a hearing on a disputed pension reform of his. The court agreed to review that case in April 2017, a month after Werdegar’s announcement she was leaving. Brown’s inaction speaks louder than his words. Whatever he is thinking, Brown should explain it.

Twitter: @sdutIdeas

Facebook: San Diego Union-Tribune Ideas & Opinion

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