Working Without Werdegar is the title of today's DJ article by H&L's Kirk Jenkins (the Stats-Master) analyzing how the Cal Supremes have been coping without a full complement of justices.
On March 8, 2017, Justice Kathryn M. Werdegar of the California
Supreme Court announced that she would retire from the court effective Aug. 31,
2017. As of Oct. 5, 2018, 576 days will have passed since that announcement,
and Gov. Jerry Brown has still not nominated Justice Werdegar's successor. Even
measuring from the day of Justice Werdegar's actual departure, Oct. 5 will be
the 400th day since the court has had its full complement of seven permanent
justices.
This is the longest vacancy in the California Supreme Court's
history by a wide margin, surpassing the 275 days which passed between Justice
Joyce Kennard's retirement and the swearing in of Justice Leondra Kruger.
Before that, only 185 days passed between the retirement of Justice Carlos
Moreno and Justice Goodwin Liu taking office as his successor.
California has a somewhat unusual system for dealing with
vacancies not found in many state supreme courts or the U.S. Supreme Court.
When there are fewer than seven permanent justices, a pro tem justice is
appointed from the Court of Appeal. Unlike pro tem appointments to the Court of
Appeal, pro tem justices to the Supreme Court do not sit for a period of weeks
or months; they join the high court for one case and then return to their
regular duties. At one point, the chief justice was empowered to select anyone
she wanted as the pro tem justice, but more recently, the appointments are made
from the full roster of Court of Appeal justices, more or less in alphabetical
order. In contrast, if the U.S. Supreme Court or many state supreme courts
without a similar system is short-handed for a period of time, they must
continue as best they can one or more justices short.
...
So what's our takeaway? What the numbers show is that all things
considered, the remaining six members of the Supreme Court have had
considerable success in coping with the increased workload arising from the
extended vacancy. Nevertheless, there is some evidence that the vacancy has
lowered the court's productivity somewhat, at least in criminal cases, and that
criminal cases in particular are moving a bit more slowly. Although there is
less evidence on the civil side that the vacancy is slowing down the overall
case flow, there is some evidence that the replacement of Justice Werdegar with
a succession of Court of Appeal justices is pushing the high court towards
greater unanimity on the civil side.
Over on the SCOTUS side, see
Chemerinsky: Another blockbuster Supreme Court term is ahead
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