There is a vacancy on the Supreme Court, caused by the retirement last month of Justice Joyce Kennard. It might take a few more months for Governor Brown to name a replacement. But the timing of the appointment will affect more than just how many Court of Appeal justices will be needed to serve as pro tems on the high court. It will also determine whether the appointee will stand for election this November or in 2018.
New Supreme Court and Court of Appeal justices — after being appointed or nominated by the Governor and confirmed by the Commission on Judicial Appointments — appear on the ballot at the next gubernatorial election, where the voters are asked to decide “yes” or “no” whether the justice should be retained in office. (California does not have contested elections for appellate justices, unlike some other states.) That is what happened with Chief Justice Tani Cantil-Sakauye, who was nominated in July 2010, confirmed by the Commission in August, and retained by the voters that November. It is also what is happening this year with Justice Goodwin Liu (assuming he timely files his declaration of candidacy), because this is the first gubernatorial election since his August 2011 confirmation.
At some point, it will be too late for Justice Kennard’s replacement to be confirmed by the Commission and still appear on the November 2014 ballot. When is that confirmation deadline for this year’s election? It’s not entirely clear to us, but we think the date is August 16 (or August 18 because the 16th is a Saturday). (Article VI, section 16, subdivision (d), is not a model of clarity on this issue and alternate interpretations are welcome.) But the point is that a confirmation on one day would mean the new justice will face the voters within a few months and a confirmation the following day would allow the justice to serve for four years before being on the ballot.