Gov. Newsom will probably go to the appellate bench for the next SCOCA justice

As the clock ticks away days with an empty California Supreme Court seat, all eyes turn to Gov. Gavin Newsom. Who will he appoint? How long will it take? Will it be me? On those questions we offer some perspective, and one clear answer. Considering history and the widely reported indications of the governor's future aspirations, the most likely choice is a centrist Court of Appeal justice who will bang out lots of opinions and generate zero headlines, doing no harm to any future political campaigns. Aside from being the right political move, that path would be consistent with past practice for this and many other modern governors. Given that, we can say with 100% confidence that none of us will get the call.

Past governors have used a wide variety of selection considerations. For his lone appointment to the state high court Gov. Gray Davis tapped federal district court judge Carlos Moreno to replace Stanley Mosk. According to Chief Justice Phil Gibson, Gov. Goodwin Knight had only politics and money in mind when he made his one appointment (Marshall McComb) to the court. Gov. Jerry Brown stands out with his intentional efforts in the 1970s to shake up the court with academics in particular and generally people from outside the traditional track. And Gov. George Deukmejian's mission in his eight appointments was to undo all that Gov. Brown had done.

Yet the court's modern justices have on the whole been appointed from the Court of Appeal, and many of the court's quiet success stories have been people who embody the mold of a typical Court of Appeal justice as an artisan, not an artist. There are obvious exceptions: Roger Traynor was an academic with no prior judicial service before becoming arguably the court's greatest justice, and Phil Gibson had about two months of government service before his 25 years as one of the great chief justices. But these exceptions prove the rule of prior appellate service among modern justices, and of course there are equally obvious examples of less-great past justices who had no prior judicial service. Most of the court's justices, and so many of its successful justices, come from the Court of Appeal, for good reason: it is a quality-assurance filter for aspirants for the state high court.

Judicial selection in California is generally a ziggurat: good lawyers become Superior Court judges, very good judges become Court of Appeal justices, and the best of those might reach the California Supreme Court. Each step gathers wide-ranging community input based on personal experience. When 201,704 active lawyers get filtered down to 1,781 trial court judges, a few jerks and fools might slip through. But those qualities quickly manifest on the bench, and even fewer judges become one of the 106 Court of Appeal justices. That makes the appellate bench the most rigorously vetted group of candidates; anyone who makes it there is very likely a good judge and a decent person.

Looked at in the reverse, all that explains why so many modern state high court justices served on the Court of Appeal, and why most folks who get appointed to those seats have trial court experience. Consider Newsom's Court of Appeal appointments as the most recent example: of his 40 or so justices, nearly all came from the trial courts. And the six who did not all have gold-star backgrounds: a judicial chambers attorney, the Solicitor General, the governor's legal office, the San Francisco City Attorney, and one had decades of experience as an appellate expert. Those records are good evidence of a reasonable person who knows the law and should be a good appellate justice. The Court of Appeal filtering process is even better evidence of that for potential California Supreme Court justices. For a governor it's a ready-made roster of good choices who have already been thoroughly vetted at least once.

Newsom's three previous state high court appointments (four if you count elevating the chief justice) show the same thought process. Justices Jenkins and Evans came from the governor's legal office, so he knew them well, and Chief Justice Guerrero came from the Fourth District Court of Appeal. All told, this track record of how governors past and present viewed this decision allows us to hazard some predictions for likely parameters here.

A critical lens here (as ever) is politics: do no harm to the governor's political future. That counsels in favor of the safe choice of a hardworking and uncontroversial Court of Appeal justice, someone with enough experience to inspire confidence that they show no tendency to controversy. That's consistent with Newsom's appellate appointments, as nearly all were Superior Court judges. And it's consistent with his three previous state high court appointments -- all were known quantities.

There are two somewhat less important but still significant considerations. The north-south balance could be a factor: the chief justice and Justice Groban are from the south; justices Liu, Kruger, Evans and Corrigan are all Bay Area residents. A justice from outside the Bay Area would balance geographic representation. And timing might matter: whether to send someone to the Commission on Judicial Appointments before or after the November general election deadline bears some thought.

But several evergreen questions should be unimportant here. Given how diverse the court already is, and the governor's appointments have already been, it's unlikely that an interest group can make a strong case for representation. For example, it's difficult to lobby for a gender-representation choice when the court is already majority female. Nominating from the federal bench is probably not an option because that would open a seat for a Republican. And avoiding a maverick in the mold of 1970s Jerry Brown is a priority, so that rules out academics and true believers of any flavor -- an intentional disruptor is the least likely result here.

Our prediction is that a Court of Appeal justice, with unquestioned bona fides and wide respect, probably male, maybe Hispanic, perhaps not from the Bay Area, goes to the Commission on Judicial Appointments by summer. And you can bet that person will not be named Carrillo, Duvernay or Stracener.