Former Justice Cuéllar reflects on court tenure, diplomacy, and 'Kabuki' confirmations

SAN FRANCISCO -- Former California Supreme Court Justice Mariano-Florentino Cuéllar returned to familiar ground Tuesday, joining his former colleagues for a California Supreme Court Historical Society event where he offered reflections on judging, diplomacy, and the often-theatrical nature of judicial confirmations.

Cuéllar, who served on the state's high court from 2015 to 2021 and now leads the Carnegie Endowment for International Peace, said he was struck by how much of his judicial experience carries into his current work.

"One of the biggest surprises about his transition," he said, was "how much the work that I was privileged enough to do on the California Supreme Court carried over to this job. The crossover is unmistakable."

"You spend so much of your time trying to make sense to try to take a very complicated set of issues and explain them," Cuéllar added.

The San Francisco event drew nearly the entire current Supreme Court, as well as several former justices, appellate judges, and leading attorneys.

Daniel M. Kolkey -- a retired 3rd District Court of Appeal justice, Gibson, Dunn & Crutcher LLP partner, and president emeritus of the Historical Society -- conducted a post-speech conversation with Cuéllar.

Cuéllar joked about his initial contact with Gov. Jerry Brown's appointments secretary: He said he was "the only lawyer in California who did not know who [now-Justice, then Gov. Jerry Brown's judicial appointments secretary] Josh Gorban was when I first got the call. It took me a couple of days to get back to him. To my great appreciation and humility, he did not take that as a slight."

He recalled that Brown's first question during his Supreme Court interview was, "What should the world do about nuclear weapons?" Cuéllar, then a Stanford law professor, answered that they should be abolished.

Describing Brown, he said the former governor was "a vigorously intellectual, very plainspoken person and he was disarming in his ability to admit his own gaps in his own past that he would have done differently" and to reflect on lessons from his earlier governorship.

Kolkey pointed out that Cuéllar had never served as a judge before joining the Supreme Court and asked how he approached interpreting statutes and the constitution.

Cuéllar -- whose wife, 9th U.S. Circuit Judge Lucy H. Koh, was then serving as a district court judge in San Jose -- replied that he often received similar questions in public forums.

"My wife would be in the room or would hear about my answer, and I was careful to say, 'Trial court deference is a way of life,'" he said, drawing laughter from the audience.

Cuéllar criticized federal judicial confirmation hearings, calling them "Kabuki" theater where "the conversations are not really candid for reasons that have to do with the polarization we're living through."

On the subject of oral arguments before state supreme courts, he pushed back against the notion that they seldom change justices' minds.

"Some of what the court has to do is not just decide the general legal question but figure out precisely how to dispose of it," he explained. The real question, he said, is often how broad or narrow a ruling should be.