Vacant seat on California Supreme Court opens door for first openly gay justice

By Dawn Geske | Apr 25, 2017

SAN FRANCISCO — After 23 years on the California Supreme Court bench, a senior Republican justice will retire, offering a vacant seat to be appointed by Gov. Jerry Brown.

Justice Kathryn Mickle Werdegar will retire on Aug. 31. Justice Werdegar was appointed by Gov. Pete Wilson in 1994 and has been an influential force on the court throughout her career. 

“It’s always a loss when a hardworking and capable justice like Justice Werdegar leaves the Supreme Court,” David S. Ettinger, a partner at Horvitz & Levy LLP, told the Northern California Record. “The loss is compounded when the justice has served on the court for a long time, because there is the loss of institutional memory.”

Justice Werdegar was moderate Republican in her approach as a justice, voting conservatively and liberally at times. The vacancy that Justice Werdegar leaves behind may provide for the first time a Democratic majority in the California Supreme Court as Brown is expected to appoint a Democratic justice to the seat. 

“Justice Werdegar’s retirement and a new Democratic-appointed majority will probably have little effect on the outcome of cases before the court,” Ettinger said. “Most supreme court decisions are unanimous, and even the ones that are not, often have what many would consider to be unconventional voting alignments.”

The new justice will be the fourth court appointment of Brown’s tenure. There is much speculation that Brown will appoint James M. Humes, an openly gay man. Humes served as Brown’s deputy while he was attorney general and as governor. Brown appointed him to the California Appeals Court in 2012.

“I can’t comment much on Presiding Justice Humes as a possible appointee, because I personally haven’t studied his opinions,” Ettinger said. “However, from accounts that I’ve heard, he is a very capable justice. If so, having an openly gay justice on the state’s highest court would be an important and positive step for a court that’s already well-regarded for its diversity.”

Brown has previously appointed Goodwin Lin, a Taiwanese American; Mariano-Florentino Cuellar, a Mexican immigrant; and Leondra R. Kruger, an African American, to the courts.

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