Gov. Jerry Brown nominated long-time aide Joshua Groban to the California Supreme Court Wednesday, likely giving appointees of Democratic governors a majority for the first time since 1986 when voters ousted three of Brown’s earlier appointees.
Groban, 45, advised Brown on his 2010 campaign, took a direct hand in helping Brown to select 600 judges during his second stint as governor, and provided him counsel on an array of litigation and legal matters.
“Josh Groban has vast knowledge of the law and sound and practical judgment,” Brown said in a statement. “He’ll be a strong addition to California’s highest court.”
In a statement, Groban said: “I am truly humbled by this nomination and, if confirmed, I look forward to working alongside the highest court’s truly exemplary jurists.”
Groban will replace Justice Kathryn Mickle Werdegar, a Pete Wilson appointee, who stepped down at the end of August 2017. Brown has not explained the delay in making the final appointment.
Unlike the fraught federal judicial nomination system, political fights over California judicial nominees are exceedingly rare.
The three-member Commission on Judicial Appointments—Chief Justice Tani Cantil-Sakauye, Attorney General Xavier Becerra and Court of Appeal Justice Anthony Kline—is expected to confirm Groban quickly. Brown and Kline have been friends since law school, and Brown appointed Becerra as attorney general in 2017.
It’s not clear that Groban could be on the bench in time to hear oral argument in cases on the Dec. 5 calendar. On that docket is a sensitive case pushed by Brown himself that could impact the next governor’s power to change or reduce pension benefits for public employees.
Brown had requested that Cantil-Sakauye accelerate consideration of the suit brought by a firefighters’ union, challenging legislation he signed six years ago limiting pensions for employees hired after 2013.
Along with the League of California Cities, Brown contends that public agencies should be able to breach the so-called California Rule. Under that rule, officials cannot reduce pension benefits without providing other compensation to offset the losses. In practice, it has kept cities and public agencies from making even minor tweaks to increasingly expensive pension plans.
The union that represents Cal Fire firefighters, Cal Fire Local 2881, brought the lawsuit. It’s not known whether Groban worked on the case and, if he did, whether he would recuse himself from considering it.
“Any discussion of individual cases is totally premature at this point,” Brown spokesman Evan Westrup said.
Firefighters’ attorney Gary Messing said Groban will make an excellent justice, but added:
“He would have to consider whether or not his involvement in the governor’s office during the pendency of this action could create the appearance of an impropriety or a conflict. He would have to determine that.”
Update: The Supreme Court has named Thomas L. Willhite, Jr., to sit as the seventh justice to hear the Cal Fire case, so Groban will not hear the matter in the event he is confirmed by Dec. 5.
Brown and Gov.-elect Gavin Newsom apparently diverge on the issue. The Sacramento Bee reported that Newsom assured public employee unions in endorsement meetings earlier this year that he would honor the California Rule even if it courts overturn it.
Groban will be joining a court that from all appearances is not ideologically divided. The vast majority of decisions are unanimous. Cantil-Sakauye, an appointee of Gov. Arnold Schwarzenegger, explained why in a 2016 interview with The Sacramento Bee’s editorial board:
“We work very carefully and respectfully with one another. We try to accommodate one another. If you have an issue with my analysis, then I am going to work very closely with you to try to get you to agree and sign on if there is something I can accommodate in the language. We’re very fortunate. I know other courts don’t have that.”
Groban’s appointment will complete a circle for Brown, who will have appointed a majority of the justices to the California Supreme Court, as he did when he was governor the first time.
In his first stint as governor, young Brown appointed Rose Bird as chief justice, along with several other justices. Brown’s successor, Republican Gov. George Deukmejian, led a campaign to oust Bird in 1986, citing her consistent rulings against the death penalty.
Deukmejian’s consultants organized crime victims, got funding from various business groups, and defeated Bird and two other Brown appointees, Justices Cruz Reynoso and Joseph Grodin, in what was a precedent-setting election. Never before had a California Supreme Court justice been defeated.
Although it hasn’t happened since in California, political activists have made challenges to supreme courts in other states.
“There is a direct connection,” Davis-based political strategist Steve Smith said. Smith has helped defend state supreme court justices against campaigns in several states in recent years including Kansas and Florida.
“In 1986,” Smith said, “they wiped out the state supreme court justices based on politics and ideology. Lately, we have seen attempts to wipe out state supreme court justices in other states based on politics and ideology, and not the law.”
Deukmejian replaced Brown’s justices with his appointees and installed Malcolm Lucas as chief justice. Lucas and Deukmejian were law partners before Gov. Ronald Reagan placed Lucas on the superior court and President Richard Nixon appointed Lucas to the federal bench.
Appointees of Deukmejian and Republican Govs. Wilson and Schwarzenegger had maintained a majority on the court until now, assuming, as is likely, that Groban will is confirmed.
Brown’s other appointees include Justices Goodwin Liu, Mariano-Florentino Cuéllar and Leondra Reid Kruger. Each is a graduate of Brown’s alma mater, Yale Law School. Groban is a Harvard graduate.