City Journal Autumn 2014

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Mark Pulliam
California’s New Mandarins « Back to Story

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Sorry, Declan. Re-read my piece. My objection to Cuellar is his comate lack of legal or judicial experience. You are the one playing the race card by trying to make such factual observations off limits.
The author seems all too ready to pull the race card as a reason to disqualify Supreme Court nominee, Mariano-Florentino Cuellar, rather than objectively evaluate him on his potential as a jurist.

There is no question that Dr. Cuellar has an excellent narrative – from humble beginnings growing up on the border to Stanford professor -- but it is not his race alone that defines him. He is an intellectual heavyweight who in addition to scholarly pursuits has served two Presidents, as a clerk to then Chief Judge of the United States Court of Appeals for the Ninth Circuit and represented applicants in immigration cases.

Dr. Cuellar will bring a very evenhanded approach to the administration of justice. That is why leaders across the legal spectrum respect Dr. Cuellar and his approach to the law. In a recent Stanford Magazine article, Abraham Sofaer, a senior fellow at the conservative Hoover Institution and legal adviser to both Ronald Reagan's and George H.W. Bush's administrations, said about Dr. Cuellar, "He's not an ideologue. What he's interested in is practical solutions.”

The author and Dr. Cuellar may have had very different experiences in Texas – one as a law student, the other as a child crossing the border each day to attend junior high school. There is nothing wrong with that. It is certainly not a reason to disqualify him from fairly and justly applying the law based on the facts to California’s 38 million residents.
The new appointment will fit well with the decline of California. A third world society presided over by the likes of Carlos Slim. Mexico reconstituted.
Well Said
Fred, I hope you were just trying to be provocative by suggesting that William Douglas was a great Supreme Court justice. He was terrible--the archetypal Ivy League/Ivory Tower activist. And Abe Fortas? A political crony of LBJ who resigned in disgrace amid allegations of corruption. And no, with all respect to my friends who teach law, teaching isn't the same as practicing, and the disconnection between the two is a major shortcoming of legal education today.

The caseload and jurisdiction of the U.S. Supreme Court are fundamentally different than that of the California Supreme Court, and I think that some experience applying California law, as either a practicing attorney or lower court judge, is a critical qualification that Cuellar is wholly lacking.

Josh, the Steinberg quote celebrates not unity, but "diversity," and the reference to the refugee crisis smacks of irredentism--the opposite of assimilation.
Further down the rabbit sinkhole they go, that California lot. Alinsky and Marx both made much of the "how to" of overtaking a nation or culture, and one of the most effective "planks" in their schema is to separate the people into various factions then set them against one another until chaos ensues. Then the "elites" step into the mess they've carefully crafted and present "the final solution" which is eagerly embraced as better than the insane chaos presently reigning. (black/white, rich/poor, working/nonworking/ makers/takers, long term residents vs immigrants, D/R, liberal/conservative/ teaparty/other, libertarian/big government, and such.) While this chap might be hispanic in ancestry, it appears he's not very balanced.... rather he will further the "divide and conquer" meme of the above named fascist operatives. He will "be a good boy" and further the tumble toward chaos now running amok in that crazy state. And to think I seriously considered returning to live in that state of my birth? Musta had my brain in the bottom of my shoe......
Only Liberals would hire a Pediatrician to do Brain Surgery.
Amen,Mark!
Administrative law is a relatively recent development. It was the area in which I have always had the greatest interest.

Alas, it is no longer confined to its proper sphere as more and more the Congress cedes immense legislative power and discretion to the growing administrative state, so that a bureaucrat in the basement of the Department of Health and Human Services gets to decide religion's proper sphere.

I think that if one's sole experience of the law comes from governmental service one might never know or appreciate the perspective of the persons regulated, i.e. the entire body of society.

I also think that experience in the private sector aids one's ability to protect the public. I know that my years as a private attorney helped me to better understand the dodges employed by some private parties subject to the state's regulations when I prosecuted license violations for the government.

Indeed it seems to me that if one's entire experience comes from the governmental side, it is both a handicap and disability.

More importantly, it seems to signify a growing trend in our country; the gradual erosion of the private space allowed to society, separate and apart from the government of the day. I recall a public figure of some notoriety who said, not long ago, and somewhat inelegantly that the government is us.

More and more the government gets to tell us what to do and how to our live our lives.

If I am a photographer, or a caterer I must service a same sex wedding though formerly I could have viewed such an event as a travesty and debasement of what marriage always meant.

The IRS gets to decide what groups may have non-profit status. A group that seeks to protect the baby seals is OK but the Helpers of God's Precious Infants are "verboten" because they strive to protect the baby humans.

For the record, I think Justice Thomas is an able jurist. I only wish that Judge Bork had had had the same ability to confront the ugliness that beset him during his confirmation hearings when Democrats like Senator Kennedy unjustly vilified him, and in the process invented a new verb, "to Bork" a candidate for the Supreme Court by false accusations and ugly demagogy.

I trace much of today's ugliness in government to that ugly and horrid moment.

I recall that the Congress twice managed to deny Supreme Court Appointments of President Nixon without a tenth of the obloquy visited upon Judge Bork successfully and Justice Thomas, unsuccessfully.

I think that there is a risk in allowing the court to become the exclusive province of disengaged legal theorists who have no real experience in the private sector.
To Fred: Justice Taney was surely the worst SC justice in history. Dred Scott ring a bell?
Clarence Thomas is no "affliction". He's one of the more sensible justices on the SC. I don't always agree with him, but that's refreshing in a way. He has his own mind and any two people each with their own minds are bound to disagree from time to time. His positions are always defensible and his opinions are always arrived at with a respect for the constitution and the text of the law.
Given that our country still suffers the affliction that is Clarence Thomas, it is pretty ballsy to hear a conservative complain about judges being appointed based on their ethnicity. It tends to increase the legitimacy of the government when Americans can see qualified individuals of a variety of ethnic groups represented in the various branches.

Governor Brown did not sift through the dredges of the legal profession to find a candidate, he picked someone who has always stood out for his excellence.

A quick review of Mr Cuellar's record shows that he has significant experience with laws surrounding public health, food safety, and regulatory reform. Gee, I wonder if there are any cases that revolve around government regulations? Also, it would be shocking if cases involving immigration and immigrant rights weren't percolating in the CA courts.

Finally, a quick note: the quotation from the state senator was far from the antithesis of e pluribus unum. In fact, it sounded more like a restatement of that important principle.
Not sure that prior judicial experience has much to do with how good a supreme court justice will prove to be. Certainly a number of people without any previous judicial experience appointed to the U.S. Supreme Court turned out to be, regardless of your or their politics, quite impressive -- e.g., John Jay, John Marshall, Joseph Story, Roger Brooke Taney, Salmon P. Chase,Charles Evans Hughes,Louis Brandeis, Harlan Fiske Stone, Felix Frankfurter, William O. Douglas,Robert Jackson,Tom Clark,Earl Warren,Byron White,Abe Fortas, Lewis Powell and William Rehnquist.

Nor does previous experience in "lawyering" (assuming "teaching law" does not count as "lawyering")seem to foretell whether a judicial appointee to the appellate bench will prove to be a superior judge. A recent study of federal circuit judges shows that "15.3%, ha[d] no prior experience in private practice." Barry J. McMillion, "U.S. Circuit Court Judges: Profile of Professional Experiences Prior to Appointment, May 9, 2014,Cong Res. Serv.
It will be interesting to see how the Judicial Nominees Evaluation (JNE) Commission rates him. They slammed Chuck Poochigian, who has much more experience than Cuellar.
The reasons to leave California only continue to grow. The last vestige of sanity and protection of individual rights rests with the court system.

A shaky bulwark of late, such unsurprising appointments will only move the courts further left -- towards CLASS rights and away from individual rights. Civil trial lawyers are ecstatic, no doubt.