For court watchers, one measure of a governor’s (or president’s) legacy is that person’s judicial appointments. For example, the cover story for this week’s issue of the Recorder concerns the potential mark Governor Schwarzenegger may leave on the California Court of Appeal for the Third Appellate District in Sacramento. The 11-seat court has been operating for the past 18 months with two vacancies as a cost savings measure. Governor Schwarzenegger has appointed Louis Mauro to one seat and is expected to fill the other before leaving office. In addition there may be as many as three more vacancies on that court: Justice Tani Cantil-Sakauye has been nominated to replace Chief Justice Ronald George on the Supreme Court of California, and appellate justices Arthur Scotland and Rick Sims have both announced plans to step down. Of these three potential vacancies, Governor Schwarzenegger would be able fill two at most since Justice Cantil-Sakauye’s seat won’t become vacant until she’s confirmed after the end of the governor’s term.
But perhaps more interesting than Governor Schwarzenegger’s mark on the Third Appellate District is how slight his imprint on the state’s high court will be in comparison to many of his predecessors. If Justice Cantil-Sakauye is confirmed, along with Justice Corrigan, Governor Schwarzenegger will have appointed just two Supreme Court justices. The previous six governors have appointed an average of five justices each to the seven-seat Supreme Court. Four of these previous governors left office with their own appointees as the majority of the sitting justices. Governor Wilson appointed five justices, all of whom were sitting when he left office. Governor Jerry Brown appointed seven justices, five of whom sat when he left. Thanks largely to a vote to oust three of Governor Jerry Brown’s appointees, Governor Deukmejian also appointed seven justices, four of whom still sat at the end of his term. But the governor who made the most appointments to the high court was the senior Governor Brown. Jerry Brown’s father, Pat Brown, appointed eight justices, five of whom still sat at the end of his term.
With now-Attorney General Jerry Brown running for governor, he might have the opportunity tie or surpass his father with regard to his total number of appointments to the Supreme Court of California. The situation calls to mind what then-Attorney General Deukmejian replied when asked why he was running for governor of California instead of another term as AG. He famously responded: “Attorneys General don’t appoint judges—governors do.”