2028 ambitions loom over Newsom's next state Supreme Court pick

Gov. Gavin Newsom has nominated three justices to the California Supreme Court during his two terms in office, including Justice Martin J. Jenkins, his former judicial appointments secretary. But his selection this time will be different in one significant way.

The governor cannot run for a third term but is an all-but-declared candidate for president in 2028 and already waging a series of high-profile political and legal battles against President Donald Trump.

Jenkins announced his resignation Thursday effective at the end of the month, creating a vacancy for Newsom to fill.

The governor's aspirations for higher office may affect the dynamics of Newsom's selection process for Jenkins' replacement or they may not, but it's already being discussed as speculation rages about who he might nominate.

Thomas A. Saenz, president and general counsel of the Mexican American Legal Defense and Education Fund, said in an email Friday that Newsom - though he appointed Chief Justice Patricia Guerrero, the daughter of Mexican immigrants - has maintained a "ceiling" of one Latino on the seven-member court.

This is objectionable, Saenz said, because Latinos are the largest demographic group in California - at 40% - but never have had more than a single justice on the court at a time.

There have been as many as four Asian-American justices on the court at once, and there are currently three Black justices, Saenz wrote.

"Thus, I think Newsom is obligated to appoint a second Latino/Latina to the court, or he will face serious headwinds with Latinos with respect to his broader political ambitions," Saenz added.

Saenz's statement is based on several assumptions, however, including the idea that voters in a 2028 presidential election, Latino or otherwise, will care all that much about how many Latino justices there are on the California Supreme Court.

Moreover, the new justice Newsom nominates would replace Jenkins, a Black, openly gay man.

Other attorneys who follow the nomination process disagree that Newsom needs to pick a nominee of a particular racial or gender background because the state Supreme Court, in part chosen by him, is already very diverse.

"He doesn't really owe interest groups," said one lawyer who asked not to be identified. "I think he has a lot of freedom."

Attorneys say there are several sitting Latino judges, including many appointed by Newsom, who would be qualified candidates. One who was mentioned by several lawyers is 2nd District Court of Appeal Justice Gonzalo C. Martinez, a former deputy judicial appointments secretary who worked for Newsom before the governor appointed him to the bench in 2023.

Last year, Newsom promoted the former Squire Patton Boggs partner, a Harvard Law School graduate, to be presiding justice of the appellate court's Division Seven.

Another Latino candidate who won praise is 4th District Court of Appeal Justice Jose S. Castillo, who was born in Mexico, moved to the United States as a child, then joined the U.S. Marine Corps at 17, serving four years.

After graduating from UC Davis School of Law, Castillo was a prosecutor with the U.S. attorney's office in San Diego for a decade - handling cartel, gang, narcotics and immigration cases - before he was appointed to the San Diego County Superior Court in 2020. Newsom appointed him to the 4th District in 2023.

Another popular candidate is 1st District Court of Appeal Justice Tracie L. Brown, a former associate with Morrison & Foerster LLP and Cooley LLP who was an assistant U.S. attorney in San Francisco for more than a decade.

Brown, whose mother was born in Japan, was appointed as a San Francisco County Superior Court judge in 2013 until Gov. Jerry Brown appointed her to the 1st District five years later.

She was confirmed as presiding justice of Division Four in April 2023 after being nominated by Newsom. Brown is a graduate of UC Berkeley School of Law.

Justice Lamar W. Baker on the 2nd District Court of Appeal, a former special assistant in the Obama White House, previously was a prosecutor in the Central District of California. Baker, who is Black, graduated from Yale Law School.

Attorneys who are following the process disagreed about how quickly Newsom will move to fill Jenkins' spot. Pro tem justices can be appointed to hear oral arguments until a new justice is confirmed.

Most expect Newsom, who has moved rapidly to fill state Supreme Court vacancies, to do so this time, especially because Jenkins reportedly informed the governor of his plans to retire a while ago.

The timing of the nomination might be influenced by whether Newsom wants the new justice to face voters in their first retention election in 2026 or 2028.