Last week, Governor Jerry Brown appointed Stanford Law professor Mariano-Florentino Cuéllar to the California Supreme Court, reported the Los Angeles Times. In January, Cuéllar will fill the seat of Justice Marvin Baxter, who will not seek reelection in November. Cuéllar has all the right bona fides to sit on California's highest court: Harvard undergraduate, Yale Law School, plus a Ph.D. in political science from Stanford. He's taught at Stanford Law School since 2001.
Cuéllar, however, has something that's unusual for a California Supreme Court justice: no judicial experience at all. Six of the seven justices on the Court came straight from a position on a Court of Appeal. Governor Brown's most recent appointment, Goodwin Liu, is the exception. Prior to joining the Supreme Court, Justice Liu was a professor at Berkeley Law School and had done some work in private practice and for the U.S. Department of Education. He was the odd man out on a court composed of people who were judges already.
Toward Academia, Away from Courts
Nominating Cuéllar -- and not, say, a Court of Appeal justice -- could signal a trend that began with Elena Kagan's nomination to the U.S. Supreme Court in 2010. Justice Kagan taught at the University of Chicago Law School beginning in 1991, made a stop at the Clinton White House, then taught at Harvard Law School starting in 1999. She served as the Dean there from 2003 to 2009.
The nomination process, though, was rough. When it came time to confirm Kagan, her lack of judicial experience was a problem. According to The Christian Science Monitor, Senator Orrin Hatch expressed concern about her judicial philosophy -- or lack thereof. Because she had authored no previous opinions, all the Senate had to go on was her academic writings, which emphasized the importance of "the judge's own experience and values" in deciding a case. Senator Hatch was not impressed.
Litmus Test Politics
When President Obama nominated Liu for the Ninth Circuit position, Senate Republicans criticized his lack of practical legal experience. In reality, the problem was that Republicans couldn't figure out how he would vote. How a judge voted in the past has become the bread and butter of judicial nominations. Each side wants to ensure that it has a solid candidate so that it doesn't end up with an Earl Warren or a John Paul Stevens -- a judge appointed by a Republican who ends up swinging to the left. Liu, like Kagan, was a blank slate.
Appointing a non-judge has its benefits, though. Instead of thinking like a judge, an academic like Cuéllar might be willing "to take a fresh look at a lot of issues that other judges might have considered well settled," Santa Clara University law professor Gerald Uelmen told The Sacramento Bee. His appointment will certainly add ethnic diversity to the Court, but so too will his academic background add some career diversity to a bench packed with former judges.
- Mariano-Florentino Cuéllar's Biography (Stanford Law School)
- California Supreme Court Facing an Ideological Shakeup? (FindLaw's California Case Law Blog)
- Bill Clinton: Appoint Non-Judge to High Court (The Wall Street Journal Washington Wire Blog)
- Cali Roundup: Justice Kennard to Retire, Happy Birthday and More (FindLaw's California Case law Blog)