Speculation begins on who will replace Justice Cuéllar

Justice Mariano-Florentino "Tino" Cuéllar is leaving the California Supreme Court after less than seven years to become president of the Carnegie Endowment for International Peace.

Even as Cuéllar spoke of his future plans in an interview Thursday, speculation was rampant about who would replace him.

3rd District Court of Appeal Justice Elena J. Duarte, a former federal prosecutor, and 4th District Court of Appeal Justice Patricia Guerrero, a former Latham & Watkins LLP partner, are considered early favorites, according to attorneys familiar with the process.

Other candidates will likely emerge, but the widespread consensus is that Cuéllar, the only Latino justice on the California Supreme Court in a state where nearly 40% of the population is Latino, will be replaced by a Hispanic nominee.

Attorneys also said Gov. Gavin Newsom might be inclined to nominate the first Latina justice in the history of the court.

"There are only seven Hispanic justices on the Court of Appeal, or about 6.6% of that court -- for a group that's 39.4% of California's population," wrote David A. Carrillo, executive director of Berkeley Law's California Constitution Center.

"I'd look for a brilliant young Hispanic woman on the Court of Appeal: Justices Elena J. Duarte or Patricia Guerrero, for example," he added.

Cuéllar's last day on the state high court will be Oct. 31, although it is not clear whether he will participate in the court's oral arguments earlier that month because he will have departed by the time opinions are issued.

Asked during a conference call why he decided to leave the bench, Cuéllar said he enjoyed his six-year tenure but viewed the position at Carnegie as an opportunity to work on public policy.

"I came from a world of thinking about international policy," Cuéllar said. "It's important to see what we can contribute on these global issues that will affect our kids."

Penny Pritzker, the Carnegie Endowment board chair, described Cuéllar as "an exceptional leader who brings a lifelong commitment to innovative policy ideas and an intellectual heft that will help us in our impactful work to build peace and prosperity."

Cuéllar, who was born in Mexico and lived with his family in Texas until moving to California when he was 14, said he was honored by the appointment. He said he would miss the court. "I really enjoyed working on many opinions with my colleagues," Cuéllar said.

The justice cited his March opinion finding the state's bail system unconstitutional. "The common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional," he wrote. In re: Humphrey, S247278 (Cal. S. Ct, op. filed March 25, 2021).

He said the opinion was strengthened by the contributions of his colleagues, who have backgrounds ranging from the judiciary to academia.

Cuéllar is a former Stanford Law School professor who took leave in 2009 and 2010 to work as special assistant to the president for justice and regulatory policy during the Barack Obama administration. He is married to U.S. District Judge Lucy H. Koh of San Jose. She was nominated last week by President Joe Biden for a position on the 9th U.S. Circuit Court of Appeals. They have two children.

The endowment is based in Washington, D.C., but Cuéllar said he would spend a fair amount of time working out of a new Silicon Valley office.

"There is more that can be done remotely than we imagined possible," said Cuéllar, who nonetheless said he would be traveling as much as feasible, given the COVID-19 pandemic, to meet people in person.

Cuéllar, who was appointed to the court by Gov. Jerry Brown, is not its only member who recently sought another job.

Justice Goodwin H. Liu, another Brown appointee, waged an aggressive lobbying campaign to persuade Newsom to choose him to replace Attorney General Xavier Becerra upon the latter's departure for the Biden administration.

In March, Newsom chose Assemblyman Robert A. Bonta, D-Alameda, instead.

Justice Leondra R. Kruger, also a Brown appointee, has been mentioned as a possible candidate for a federal judgeship or a position in the U.S. Department of Justice.