As expected, Governor Jerry Brown used the latest vacancy on the California Supreme Court to nominate a left-wing Latino. Last week, Brown named Mariano-Florentino (“Tino”) Cuéllar to replace Marvin Baxter, a conservative stalwart appointed by Governor George Deukmejian in 1991. Brown had come in for criticism from some Democrats for naming an Asian—U.C. Berkeley law professor Goodwin Liu—to replace Justice Carlos Moreno, the only Latino on the high court when he retired in 2011. Liu is so left of center that when President Obama nominated him to the liberal Ninth U.S. Circuit of Appeals, Republicans in the U.S. Senate filibustered and refused to confirm him. Liu’s ideological bona fides earned Brown no credit with Hispanic groups, however. Ever mindful of his base, Brown gave the nod to Cuéllar, a Mexican-born, Ivy League-educated academic.
Cuéllar’s credentials are impressive. He holds degrees from Harvard, Yale, and Stanford, where he heads the international studies program. He also teaches administrative law and international law at Stanford Law School. Cuéllar worked for two Democratic presidents—Obama and Bill Clinton—focusing largely on immigration issues. Yet practically none of his professional experience is germane to matters of California law within the purview of the state Supreme Court. He’s written primarily about national security and immigration.
Perhaps more importantly, Cuéllar has little experience practicing law, and no experience as a judge. He has never prosecuted (or defended) a criminal, tried a case, argued in court, drafted a contract or lease for a client, handled a divorce, negotiated a settlement, or even presided over a trial or appeal as a lower-court judge. Even Sonia Sotomayor, the first Latino on the U.S. Supreme Court, nominated by President Obama in 2009, had prior experience as a prosecutor and more than a decade as a lower-court judge. Cuéllar has been nominated to California’s highest court solely on the strength of an Ivy League education and career. Yet veteran Sacramento Bee political columnist Dan Walters deemed Cuéllar’s qualifications “impeccable,” and the San Francisco Chronicle’s Bob Egelko called his credentials “stellar.” No doubt Cuéllar would make a strong appointment to a policy position in the federal government, but (like Liu) he is dubious as a state Supreme Court nominee.
Part of the trouble with Cuéllar—and Liu, for that matter—is the notion that different segments of the population require “representation” on the court. Does the high court need to “reflect the diversity of our state,” as leaders of the California Latino Legislative Caucus assert? The point of the rule of law (and the judicial branch) is that all citizens are equal before the law and that justice is blind to individual characteristics. Selecting judges based on their race, gender, ethnicity, or sexual preference encourages the opposite view. It divides our society into separate (sometimes warring) camps of individual self-interest. Senate president Darrell Steinberg praised Cuéllar’s nomination with a reference to the current crisis along the southern U.S. border: “As the humanitarian situation on the U.S.-Mexico border triggers a demarcated debate of ‘us’ and ‘them’, the Governor’s nomination of . . . Cuéllar serves as a timely reminder that our Golden State was forged by disparate immigrant communities who pushed frontiers and who, together, recognized a common strength in diversity.” His words are the antithesis of the motto on the Great Seal of the United States, E pluribus unum—“Out of many, one.”
It’s odd that Cuéllar’s boosters make so much of “diversity,” on the one hand, yet laud his Yale Law School degree, on the other. (Governor Brown also holds a law degree from Yale.) Self-styled progressives seem not to mind that their emerging new leaders often represent a recently anointed class of Brahmins—not the old blue-bloods from New England, but first- or second-generation immigrants. Cuéllar and his wife, federal judge Lucy Koh, make an impressive power couple. But wouldn’t a nominee who graduated from a California law school, who went on to significant experience as a prosecutor, in private practice, or on the bench be more impressive? The Ivory Tower lacks the most important form of diversity—different points of view.
The notion that judges needn’t be good lawyers, or have any practical legal experience whatsoever, diminishes the legitimacy of the judiciary. Thirty or 40 years ago, the idea would have been controversial. Judges are not supposed to be mere ideologues deciding cases according to the preferences of the politicians who appointed them. The California Supreme Court decides many highly technical cases involving “private law”—disputes between non-governmental actors involving contracts, property rights, torts, family law, and the like. Cuéllar has no relevant experience in such matters. Even the court’s “public law” cases—disputes between a citizen and the state—overwhelmingly involve criminal matters. Legal scholars tend to focus on “glamorous” issues such as civil rights and constitutional law, which are mainly the concern of federal, not state courts.
It doesn’t require a “renowned scholar” (as Brown described Cuéllar) to make an effective Supreme Court justice, but someone with knowledge about California law, respect for the rule of law, and an understanding of judicial restraint. Tino Cuéllar is not that man.