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Cuellar Endorses Realpolitik View Of Judging In Academic Writing

Publication Date: 
August 07, 2014
Daily Journal
Emily Green

Professor Mariano-Florentino Cuellar is profiled by the Daily Journal's Emily Green in regards to his belief that  judges play an active role in shaping the law. 


Strategic. Practical. Attuned to the relationship between the courts and politicians.

Those traits emerge in California Supreme Court nominee Mariano-Florentino Cuellar's academic writing.


"As far as the law is concerned, political responses are actually fair game for interpreters to consider when crafting their decisions," Cuellar wrote in his 2001 doctoral thesis, which Gov. Jerry Brown singled out last month as having impressed him.


"Overcriminalization is unquestionably capable of submerging human well-being under a flood of discretionary punishments," Cuellar wrote in a 2008 law review article entitled "The Political Economies of Criminal Justice."

"Yet undercriminalization, too, is capable of delivering suboptimal policy outcomes," he wrote.


"Tino is a pragmatic Democrat," said Stanford Law School Professor Hank Greely. "Very policy-oriented, very practical, very realistic. He has a good sense of how things work and is unlikely to go off on futile crusades."


"[I]nterpreters should take stock of the tools that occasionally allow them ... to make doctrine not only bold but lasting," he wrote. Just like a governor or legislator, judges are forced to make strategic judgments "in order to survive, prosper and achieve their objectives.

"If this makes judges feel a bit less unique, perhaps they will also feel a bit less alone."