As the Supreme Court today begins hearing its September calendar with eight Court of Appeal justices sitting to temporarily fill the vacancy created by Justice Kathryn Werdegar’s retirement (live video here), the Daily Journal [subscription] reports about the process to find a permanent replacement. The article says that “two names have emerged” in the speculation about whom Governor Jerry Brown will appoint — Presiding Justice Jim Humes (of the First District, Division One, Court of Appeal) — who is one of the pro tem justices today — and Justice Lamar Baker (Second District, Division Five). The Daily Journal also mentions Justice Jeffrey Johnson (Second District, Division One) — who is also sitting on the court pro tem today — as a possible pick.
The question about an appointment, however, is not only who but when. The article quotes a deputy press secretary in the Governor’s office as saying “there is no set timetable.” However, the more pro tem justices the Supreme Court must use — and the court will soon be announcing its October calendar, likely with more pro tems — the greater the odds that an institutional problem will arise. It can be damaging if the court decides a case by a 4-3 vote with a pro tem in the majority. When that happens, there will be the suspicion that the case’s outcome was determined by which Court of Appeal justice was randomly chosen to sit on the Supreme Court for that one case.
Although her retirement was not effective until last week, Justice Werdegar announced it six months ago and the Governor likely could have had a new justice appointed and confirmed in time to be sitting on the court today, allowing the court to operate without the need for any pro tem justices.