California Supreme Court Associate Justice Joyce Kennard, during 2009 arguments over state's same-sex marriage ban, Proposition 8. (Getty Images)
California Supreme Court Associate Justice Joyce Kennard announced her retirement from the state’s Supreme Court last week. (Getty Images)

There’s an old expression in politics that when governors or presidents fill high-profile vacancies with appointments, they make one friend and two dozen enemies.

That old adage was brought to mind with the surprise retirement of state Supreme Court Justice Joyce Kennard last week. It leaves Gov. Jerry Brown with a tremendous opportunity to cement his legacy.

But he’s also sure to anger at least one key constituency.

The high court currently has no Latino or African-American justices. Six of the seven justices were appointed by Republican governors.

When Carlos Moreno suddenly retired three years ago, Brown replaced him with a surprise pick – UC Berkeley law professor Goodwin Liu. He had been tapped by President Barack Obama to serve on the federal bench, but his nomination languished in the U.S. Senate. Brown used the appointment to tweak Republicans who didn’t think he was good enough to serve on the bench.

“He’s been well vetted,” Brown said of Liu at the time. “He’s been attacked by the best and sharpest politicians in the country.”

That appointment increased the number of justices with Asian heritage to four (Kennard is Eurasian). While the pick was widely praised publicly, it left leaders in Latino and African-American legal circles disappointed, to say the least. Now, with a second vacancy on the court, those groups are updating their appointment lists and planning their strategy to get “one of their own” on the state’s highest court.

Chris Arriola with La Raza Lawyers, a Latino legal group, thinks the governor will have plenty of good options. “Thanks to recent appointments to lower courts by Brown and President Obama, the bench of state and federal Latino judges in California to choose from is a lot deeper now than when Brown filled his first vacancy in 2011,” Arriola said.

Assemblyman Luis Alejo, vice chair of the Latino Caucus in the Legislature, says his group is still vetting possible nominees. He expects to give Brown a list of six possible Latino nominees, three men and three women.

Options for diversity on the court

The list of leading candidates likely includes:

  • Miguel Marquez. The former Santa Clara County counsel was appointed by Brown to the 6th District Court of Appeal in San Jose, making him the first Latino justice there. The governor also appointed his oldest sister, Raquel, to the trial court in Riverside County. Marquez, who’s in his mid-40s, earned degrees from Stanford and Harvard before graduating from UC Berkeley Law School.
  • Yvonne Gonzalez Rogers. Although she is a Democrat, Rogers was named to the Alameda County Superior Court by former Republican Gov. Arnold Schwarzenegger. In 2011 Obama later nominated her to replace retiring Prop. 8 trial Judge Vaughn Walker on the federal District Court for the Northern District of California. She is in her late 40s.
  • Three Latino academics could also be in the mix: UCLA Law School Dean Rachel Moran, Stanford Law professor Mariano-Florentino Cuellar, and UC Davis Law School Dean Kevin Johnson.

Of course, Latinos aren’t the only group hoping the next Supreme Court justice will come from their community. Kimberlei Evans, president of the California Association of Black Lawyers, notes there hasn’t been an African-American on the state Supreme Court since 2005, when President George W. Bush elevated controversial justice Janice Rogers Brown to the federal Court of Appeals in Washington, D.C.

Evans said her group will put forward a relatively short list, perhaps two people, for the governor to consider. Evans believes one leading contender the last time around has taken his name out of contention. Evans said she’s heard “through the grapevine” that Martin Jenkins, an associate justice of the First District Court of Appeal, does not wish to be considered.

Although she hopes the governor will choose an African-American to replace Kennard, she also understands the realities of demographics.

“I think yes,” Evans noted, “given the current statistics and diversity we would be happy to see a Latino as well, if that’s who is chosen. It’s the level of community trust (in the nominee) that’s important,” she added.

In fact, Assemblyman Luis Alejo noted that next month is a milestone for California, when Latinos are expected to officially surpass Caucasians as the largest race or ethnic group in the state.

“There is a high expectation, considering the demographics,” Alejo told me. “This would be the right time to appoint a Latino or Latina to the Supreme Court.”

All are aware that Brown takes these nominations very seriously, personally interviewing candidates, reading their opinions (if they’re already on the bench), and looking beyond the usual suspects.

In that regard, one name mentioned as a “dark horse” choice is James Humes, Brown’s former legal adviser. In 2012 Brown named Humes to the state appeals court in San Francisco, making him the state’s first openly gay appellate justice. Brown could make history again if he elevates Humes to the Supreme Court.

Minority Groups Pressure Brown On Supreme Court Nomination 28 April,2014Scott Shafer



Scott Shafer

Scott Shafer migrated to KQED in 1998 after extended stints in politics and government to host The California  Report. Now he covers those things and more as senior editor for KQED's Politics and Government Desk. When he's not asking questions you'll often find him in a pool playing water polo. Find him on Twitter @scottshafer

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