The California Supreme Court has been short a justice for more than six months since Martin J. Jenkins’ retirement, making it one of the longest high court vacancies in the Golden State’s history.
Under state rules, a nominee will come from Gov.
Erwin Chemerinsky, dean of the University of California-Berkeley School of Law, said he has “no idea why it has taken so long to fill this vacancy.”
Newsom’s office declined to comment on the nomination process or the opening that’s existed since Oct. 31, 2025. It’s the third longest Supreme Court opening the state has seen in modern times. If he waits until after August, it will become the second-longest.
The governor could wait until after the Nov. 3 election to name Jenkins’ replacement and still have adequate time to confirm the nominee before his term ends, high court appellate lawyer David S. Ettinger of Horvits & Levy LLP said.
Newsom “could definitely drag it out longer than this,” Ettinger said.
1. What is the process for filling a California Supreme Court vacancy?
Once Newsom makes his selection, that person will be referred to the California State Bar’s independent Judicial Nominees Evaluations Commission. The nominee will also be referred to the state’s Commission on Judicial Appointments, which is composed of Chief Justice
The COJA will hold a public hearing where the evaluation commission’s investigation will be disclosed, and the commission will determine whether to confirm the nominee’s appointment. California’s Supreme Court nomination process differs from other states, which employ legislative approval of gubernatorial nominations or state-wide elections.
Typically, justices face a retention election the same year as the first gubernatorial election following their appointment to the court. The vote is a straight “yes” or “no” from voters, with no challenger on the ballot. It’s rare that a justice wouldn’t be confirmed by voters, however in 1986 three were famously removed, giving the Republican governor at the time—George Deukmejian, who’d campaigned against the justices—three appointments.
In the current situation, whoever is confirmed will serve out the remainder of Jenkins’ term until 2034, facing no retention election. After 2034, the justice can either file a declaration of candidacy to go before voters in a general retention election or the governor will nominate a replacement, according to the California Secretary of State’s Office.
2. What’s the longest vacancy there’s been in California?
The roughly 16-month vacancy that followed former Justice Kathryn Mickle Werdegar’s retirement in 2017 is the longest in the court’s modern history and among the longest for any state Supreme Court. Werdegar was replaced with Justice Joshua P. Groban in 2019 after former Gov. Jerry Brown nominated him in November 2018 as Brown’s final term as California’s governor was coming to a close. Groban took his seat on the court less than two months before Newsom assumed the governor’s office.
In his two terms as governor, Newsom nominated three justices to the high court: Jenkins, Guerrero, and Kelli M. Evans, with each of those vacancies lasting only a few months or less.
3. Who could be under consideration?
David A. Carrillo, executive director of the California Constitution Center at the University of California Berkeley law school, said he thinks Newsom’s nominee will be a “centrist” state court of appeal justice that will make “zero headlines” so to not harm the governor’s potential future political aspirations. The political calendar appears to be a factor in the decision, Carrillo said, making him think a nomination will come this summer.
“Slotting this after the primaries but before the general election maximizes benefits and minimizes the timing risks,” which include “accidentally upsetting a campaign, or the announcement getting lost in election coverage,” Carrillo said.
That timing is “good news for the shorthanded court,” he said. “Summer is around the corner, so an announcement may be imminent.
Ettinger agrees that the governor’s political future and potential 2028 presidential run will likely color his nomination choice, but adds that the replacement justice may come from Newsom’s own office—potentially the legal affairs team.
I initially thought a sitting appeals justice “was a good bet, but if he was going to do that, I don’t know why he would have been waiting this long,” Ettinger said. “So that militates a little bit more towards increasing the odds who’s currently serving in his administration.”
He pointed out that two of Newsom’s prior picks— Jenkins and Evans—used to serve roles in the Newsom administration. In terms of current appellate justices who used to work for Newsom, Ettinger noted Justice Daniel H. Bromberg and Justice Gonzalo C. Martinez both fit the bill.
4. Does the open seat matter for state’s Supreme Court currently?
For the last six months California Courts of Appeal justices have been temporarily filling in during high court oral arguments and deciding whether to grant or deny petitions for review.
The California Supreme Court won’t set a conference on whether to consider scheduling a case for oral argument until a tentative disposition of the case has been approved or is likely to be approved by a majority of the justices on the court, Ettinger said. With only six justices on the court, edge cases can’t get calendared for oral arguments because of the lack of a tie-breaking seventh vote.
If the court “only has three votes for a calendar memo, they’re probably going to delay it,” Ettinger said. “I have no idea how many fully briefed cases there are where there’s a 3-3 division and are being delayed.”