Chemerinsky warns it could be too late for Newsom to fill California Supreme Court vacancy

SAN FRANCISCO -- Gov. Gavin Newsom may be running out of time to fill a vacancy on the California Supreme Court before leaving office, UC Berkeley Law Dean Erwin Chemerinsky warned Friday, although other legal experts say an appointment remains possible and point to a precedent from the final weeks of Gov. Jerry Brown's administration.

Speaking at the Consumer Attorneys of California annual convention at the Palace Hotel, Chemerinsky criticized Newsom for leaving the seat vacant for more than a year and questioned whether a nominee could complete the confirmation process before the governor's term ends.

"This is a week where I really want to praise Gavin Newsom," Chemerinsky told the audience. "But I think leaving a seat on the Supreme Court for a year and a half is inexcusable. Marty Jenkins retired in [October] 2025, and now we're in the middle of November 2026, and still Governor Newsom hasn't nominated anyone."

Chemerinsky's comments came at the end of his prepared speech on constitutional issues and U.S. Supreme Court reform. During a brief question-and-answer period, an attendee asked if he knew whom Newsom was likely to appoint. The dean said he had heard "rumors," but made clear that the long delay was his bigger concern.

Chemerinsky outlined the steps required to confirm a nominee, noting that even the expedited appointment of Justice Kelli M. Evans took two months.

"It's going to be tough," he said, suggesting that Newsom's successor, Xavier Becerra, might ultimately make the appointment.

"It is just inexplicable to me that a governor would leave a seat on the Supreme Court vacant this long," Chemerinsky said. "Every day that goes by makes it less likely that he will be making the pick."

But appellate attorney Mitchell Keiter of Keiter Appellate Law pointed to a similar situation in 2018, when Brown waited until after the November election to nominate Joshua Groban to the Supreme Court.

Justice Kathryn Mickle Werdegar announced her retirement in March 2017, but Brown did not announce Groban's appointment until November 2018, shortly before leaving office.

Keiter recalled speculation at the time that Brown wanted to retain Groban, then a senior adviser in his administration, for as long as possible before appointing him to the court.

He also noted that California's judicial confirmation process is far less contentious than the federal system, where partisan divisions can complicate nominations.

"Unlike the federal confirmation that are so adversarial and people won't vote for the other party's nomination, in California ... all the people who [will be voting on confirmation] have an institutional interest in doing so," Keiter said.

"I would assume that the will to confirm is there and I don't think it is too late, at least it wasn't too late in 2018."

David S. Ettinger, an appellate attorney at Horvitz & Levy LLP, also questioned whether Newsom has waited too long. Writing on "At the Lectern," his blog closely followed by California Supreme Court practitioners and other legal observers, Ettinger pointed to the relatively short confirmation periods for previous justices.

"I doubt that Newsom has taken too long to have an appointee confirmed," Ettinger wrote.

Brown nominated Groban on Nov. 14, 2018, and the Commission on Judicial Appointments confirmed him Dec. 21, just 18 days before Brown left office. Ettinger noted, however, that the State Bar's Commission on Judicial Nominees Evaluation had begun reviewing Groban months earlier, in August, for a possible Court of Appeal appointment.

Ettinger also noted that other Brown appointees were confirmed within 28 to 37 days, while Newsom's appointment of Justice Martin J. Jenkins took 36 days.

Benjamin J. Horwich, a partner at Munger, Tolles & Olson LLP, agreed that the delay has been unusually long and that the remaining time presents a challenge.

"There's no question that a year and a half is a long time for a vacancy," Horwich said. "And Dean Chemerinsky is right that time is tight for the JNE Commission and the Commission on Judicial Appointments to act."

But Horwich said the expiration of Newsom's term would not automatically invalidate a pending nomination. Under the California Supreme Court's 1979 decision in In re Governorship, the confirmation process could continue into the next administration unless the incoming governor withdrew the nomination.

"If Governor Newsom nominated someone and the process had not concluded by the time Governor Becerra takes office, then the process would continue unless Governor Becerra affirmatively withdrew that nominee," Horwich said.

Horwich suggested there might have been a practical reason for delaying an appointment until late summer. A justice appointed in mid-2026 would have faced a retention election in November, while someone appointed now would not face voters until 2030, followed by another retention election in 2034.

"But we are obviously well past that point," he said.

David Carrillo, executive director of the California Constitution Center at UC Berkeley School of Law, agreed that the delay was difficult to explain but disputed the suggestion that Newsom might already be out of time.

"I somewhat disagree with Dean Chemerinsky -- but only on the timeline," Carrillo said.

The Commission on Judicial Appointments has a hearing scheduled for Monday, Nov. 16, and it is too late to add a nominee to that agenda, Carrillo said. But nothing prevents the commission from scheduling another hearing before Newsom leaves office.

Carrillo also noted that because Newsom is in the final six months of his term, a review by the Commission on Judicial Nominees Evaluation arguably is not required. Such a review may already have taken place, he added, because the proceedings are confidential.

"So the governor still has a window and it can be done," Carrillo said.

Nevertheless, Carrillo shared Chemerinsky's frustration over the unexplained vacancy.

"But Erwin is right as can be about the mystery delay," he said. "I can only hope we'll all say 'so that's why' when Gavin names someone and the reason becomes clear. For love or money I could not summon a reason for him to leave the seat open."

Rex S. Heinke, a partner at Complex Appellate Litigation Group in Los Angeles, also questioned the delay.

"It is surprising that the Governor has not made an appointment yet and it will be difficult to do so with less than two months remaining in his term," Heinke said.

The vacancy has left the seven-member court operating with six permanent justices, although Horwich said its established procedures for assigning temporary justices have helped minimize the disruption.

"The good news is that the California Supreme Court has an excellent process for appointing justices pro tem, to assure that the Court has a full complement for every case," Horwich said. "And in that situation, the Court is well-served by its strong traditions of working together to reach unanimous or near-unanimous decisions."