Joyce Kennard will be stepping down from the California Supreme Court effective April 5.
Kennard was appointed by Governor George Deukmejian in 1989, and is the longest serving justice on the Court. Born of Eurasian ancestry, she currently helps make up both the majorities of Asian and female justices on the seven-member bench.
The timing of the retirement coincides with the 25th anniversary of Kennard’s appointment and ensures that her successor will not have to stand for the first retention vote by the voters until November 2018 before commencing a full 12-year term.
The vacancy will set up the second high visibility appointment and confirmation process by the Commission on Judicial Appointments for Jerry Brown 2.0. Instead of confirmation by the state’s legislative body, the fitness for appointment in California is judged by a three-person panel made up of by the state’s Chief Justice (Tani Cantil-Sakauye), the Attorney General (Kamala Harris), and the senior presiding justice of the Courts of Appeal (Joan Dempsey Klein of the 2nd Circuit).
In 2011, Brown appointed Justice Goodwin Liu–who was stuck in a Senate quagmire for a Ninth Circuit appointment–to the vacancy left byCarlos Moreno, and Latino and African-American groups were both disappointed that the appointment left both groups off the bench.
All this comes in an election year, and presents itself to a governor whose first term was marked by accusations of the appointment of unqualified justices, and the recall thereof, to the California Supreme Court. The focus of the voter anger in 1986 was Chief Justice Rose Bird, who had shown a disdain for the death penalty by finding substantive and technical flaws in the case and then three more votes to overturn it.
However, also swept out were Brown appointees Joseph Grodin and Cruz Reynoso. Some have argued that the anger wasn’t really about death penalty cases, but advances in labor law, particularly for farm workers. In the end, it’s true that passions were against the bloc opposed to the death penalty, but, without other interests aligning and funding the the campaign against reconfirmation, they likely would have stayed on the court.
Jerry Brown isn’t one to always follow convention, but I would expect significant pressure to appoint an African-American or Latino justice, with some pressure for another female. And, with the developments of the last four years, there will be pressure from the gay and lesbian community. The challenge is how far he wants to reach. The Courts of Appeal in California have several potential candidates, but many were appointed by Republican governors. Gray Davis was slow to appoint judges until after the recall, and Arnold Schwarzenegger made twice as many trial court appointments as Davis.
The appointment will move the California Supreme Court from 6:1 Republican:Democratic gubernatorial appointees to 5:2 Republican:Democrat. Term two of Jerry Brown 2.0 (or is that 4.0?) might bring 2-3 more opportunities. With political trends the way they are in California and with the California GOP’s current gubernatorial bench, there is little pressure to “hang in there” for a GOP governor, unlike the pressure on justices on SCOTUS.
Cross-posted at the Nooner.