Baxter Retirement Lets Governor Brown Pick a Third Supreme Court Justice

Thursday, June 19, 2014
Retiring Justice Marvin Baxter

When Governor Jerry Brown nominated Goodwin Liu to the California Supreme Court in 2011, the new justice replaced the only other Democratic appointee on the seven-member panel.

Now, Brown has a chance to triple that total.

Justice Marvin Baxter, a Governor Deukmejian appointee 24 years ago, announced Wednesday he will retire when his term is up in January, joining Justice Joyce Kennard, who retired in April. Baxter is considered by many to be the most conservative member of the court, although the unpredictable Kennard outflanked him on more than one occasion.

Brown has not announced a replacement for Kennard yet, but it is assumed replacements for her and Baxter will be nominated before November’s election, which pits the governor against Republican challenger Neel Kashkari.

Although California has a liberal reputation—Democrats hold all major statewide political offices and overwhelmingly control the Legislature—the high court is more difficult to define. It is generally regarded by liberal folks as right-leaning centrist and by conservatives as beyond-the-pale left. It is not an easy thing to measure. Justices form different coalitions around different issues, and being conservative in California is different than being conservative in Alabama.

Regardless of how the court’s ideology is measured, one thing seems certain: the justices have tended to vote alike in recent years. Gerald F. Uelmen, a professor at Santa Clara University School of Law, found that 75 of the court’s 86 published cases between July 1, 2011, and June 30, 2012, were unanimous. Even Justice Liu, labeled a left-wing loon by Republicans who filibustered his nomination by President Obama to sit on the U.S. Ninth Circuit Court of Appeals, fit in nicely. Justice Kennard was considered the outlier and she is gone.

The court that Baxter fit in with had him write the unanimous decision in 2004 that required sex offenders to register for life, the 6-1 decision in 2009 that toughened up the three-strikes law for felons to include juvenile convictions, and the unanimous ruling last year that allowed local governments to ban medical marijuana dispensaries, although they are legal in the state.

Baxter dissented in the 4-3 ruling in 2008 that struck down California’s law against same-sex marriage and was a steady vote for upholding death penalty sentences.

Attention now turns to potential replacements, a process that will no doubt have a racial component on a court that until recently had three members of Asian descent and four white people. California’s first African-American on the court was appointed in 1977 and the first Latino in 1982. Janice Rogers Brown (1996-2005) was the last African-American on the court and Carlos Moreno (2001-2011), replaced by Liu, was the last Latino.

–Ken Broder      


To Learn More:

State High Court's Leading Conservative to Retire (by Bob Egelko, San Francisco Chronicle)

California Supreme Court Justice to Retire (by Paul Elias, Associated Press)

California Supreme Court Justice Marvin Baxter to Retire (by Howard Mintz, San Jose Mercury News)

Liberal California Has Rare Chance to Adjust Its Republican-Appointed Supreme Court (by Ken Broder, AllGov California)

Associate Justice Marvin R. Baxter (California Courts)

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