LGBTQ bar associations from across California are calling on Governor Gavin Newsom to name an out person to the pending vacancy on the state's highest court. Were he to do so, Newsom would make judicial history.
Despite rumors of there being a closeted jurist on the Supreme Court of California, there has never been an out LGBTQ person serving on it, as the Bay Area Reporter has noted for years in stories about the demographic makeup of the Golden State's judiciary. All seven of the current Supreme Court members identify as straight according to the annual reports that detail the sexual orientation and gender identity of the state's judges.
Should Newsom tap a bisexual or transgender individual for the Supreme Court seat, it would mark the first appointment of either to a court bench higher than one of the state's 58 county superior courts.
Justice Ming Chin, 77, announced in January that he would retire at the end of the court's current term later this summer, having served on it for nearly 25 years. Appointed by former Republican Governor Pete Wilson, Chin is the court's first Chinese American justice and the longest-serving sitting member on it.
His retirement gives Newsom, a Democrat serving in his first gubernatorial term, his first opportunity to reshape the state's highest court. Chin is considered to be the court's most conservative member.
He was part of the minority in 2008 that dissented against the court's decision in favor of same-sex marriage. Newsom, while serving as San Francisco's mayor, had sparked the court fight over marriage equality by ordering city officials to wed same-sex couples just days prior to Valentine's Day in 2004.
(The state court ruling was short-lived, as California voters overturned it by passing Proposition 8 on the November 2008 ballot. Five years later the U.S. Supreme Court allowed a federal district court ruling that struck down Prop 8 to stand.)
Newsom's predecessor Jerry Brown, during his second go-around as governor, named four of the current justices on the state Supreme Court. Having named the first out LGBT judge in the state when he first served as governor in the late 1970s and 1980s, Brown disappointed LGBTQ advocates by not breaking another judicial pink ceiling with his picks for high court vacancies.
LGBTQ advocates are now eager to see Newsom make history with his. As the B.A.R. previously reported, gay lawmakers state Senator Scott Wiener (D-San Francisco) and Assemblyman Todd Gloria (D-San Diego), the chair and vice chair, respectively, of the California Legislative LGBTQ caucus, sent Newsom a letter in February urging him to nominate an LGBTQ judge to succeed Chin.
They asked him "to seize the historic opportunity" he had been given to nominate the first openly LGBTQ-identified justice to California's supreme court. As Wiener stated then, "representation matters, and I urge the governor to do what he has always done: stand up for LGBTQ people."
All seven LGBTQ bar associations in the state last week sent Newsom and his judicial appointments secretary, former appeal court justice Martin Jenkins, a letter expressing their desire to see him name "an LGBTQ+ individual, a person of color, or, preferably, an LGBTQ+ person of color" as Chin's successor on the court. The legal groups noted in their July 9 letter that the court has yet to have an openly LGBTQ justice and that its current makeup includes one Black justice and one Latinx justice.
"We recognize the work you have done to fight for the dignity of LGBTQ+ Californians," states the legal groups' letter. "From issuing marriage licenses in 2004 to announcing an LGBTQ+ focused clemency initiative in 2020, your actions highlight the value of recognizing the important role LGBTQ+ individuals play in our communities. We urge you to continue that work in making judicial appointments."
The LGBTQ legal groups also pointed out that there are myriad qualified individuals that Newsom could choose. LGBTQ+ individuals and people of color, noted the groups, are already serving as appellate justices, superior court judges, legislators, academics, and attorneys in public and private practice.
"Many of them are highly qualified to fill this and other judicial positions," states the letter. "We know you will consider many highly qualified candidates, and we hope that process will culminate in the appointment of California's first openly LGBTQ+ justice, a justice of color, or an LGBTQ+ justice of color."
Signing the letter were the leaders of the Northern California legal groups Bay Area Lawyers for Individual Freedom, SacLegal, and the Sonoma County LGBTQI Law Section. The leaders of the Southern California groups Long Beach LGBTQ Attorneys & Allies, LGBTQ+ Lawyers Association of Los Angeles, Orange County Lavender Bar Association, and the Tom Homann LGBT Law Association in San Diego also signed on to the letter.
The septet also pointed out that there continues to be a lack of LGBTQ representation on the state's appellate and superior courts. As the B.A.R. noted in March when the 2019 judicial demographic data was released, the number of out judges on California state courts remained flat at an official count of 62 between 2019 and 2018.
It marked the first time the ranks of LGBTQ people serving on the bench had not increased year-to-year since 2014. At the time there were at least 63 known LGBTQ judges on the state bench, as the annual reports often do not reflect the most up-to-date information about judges.
"As of 2019, judges in 21 of California's 58 county superior courts were exclusively white; judges in 12 counties were exclusively male; and judges in 10 counties were exclusively white, heterosexual, able-bodied males," wrote the LGBTQ legal groups in their letter.
As of July 1, according to the most recent report on court vacancies, there were two appellate court seats for Newsom to fill, one each on the Third Appellate District 1 and the Fourth Appellate District, Division 1. There were also 85 vacant county superior court seats listed in the report.
Among Bay Area superior courts, the report said there are five vacant seats in Santa Clara; two each in Alameda, Solano, and Sonoma; and one each in Contra Costa and San Mateo. It listed four vacant seats on the San Francisco County Superior Court, which has six out judges.
The San Francisco court's spokesman, Ken Garcia, though told the B.A.R. July 16 that there are currently only three "official" vacancies that Newsom is able to fill.
Two of the vacancies are due to the retirements of judges in June. Charlene Padovani Kiesselbach, the first woman appointed to the board of UC Hastings College of the Law, and A. James Robertson II, who survived the Japanese attack on Pearl Harbor, both stepped down after serving 25 years on the San Francisco court.
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