Federal judges tend to avoid getting publicly involved in U.S. Senate confirmation battles, but a judge on the 2nd U.S. Circuit Court of Appeals became an exception last week with a nomination involving a former clerk of his.
Senior Judge Jon Newman of the 2nd Circuit has called at least one senator to lobby on behalf of the nomination of Robert Chatigny to the same New York-based appeals court. Chatigny, a federal district judge in Connecticut, clerked for Newman three decades ago, and they have chambers in the same federal courthouse in Hartford, Conn.
Chatigny has run into heated opposition from Senate Republicans, and the criticism has been strong enough to prompt a defense from Newman, who took senior status in 1997. His interest might not have become public, but Sen. Arlen Specter, D-Pa., mentioned it at a meeting Thursday of the Senate Judiciary Committee.
"I got a call from a very distinguished judge on the 2nd Circuit, Judge Jon Newman," said Specter, who graduated from Yale Law School with Newman in 1956. "Judge Newman speaks very highly of Judge Chatigny, and I have great confidence in Judge Newman."
Newman, in an interview Friday, said it's not unusual for him to give input to senators on a presidential nominee when he has experience with the nominee's work. In this case, Newman said he's reviewed Chatigny's work from an appellate perspective and admired it.
"We're in a position to have a professional opinion one way or another. When I have such a conversation, I don't regard it as anything unusual -- although I can't claim it's frequent, because appointments aren't frequent," Newman said.
When the Senate considered the Supreme Court nomination of Justice Samuel Alito Jr., several of Alito's current or former colleagues from the 3rd Circuit testified before the Judiciary Committee in January 2006.
Charles Geyh, a professor at Indiana University Maurer School of Law who writes about judicial ethics, said there is no prohibition on a judge calling a senator about a nominee, though doing so carries the risk of "being sucked into the vortex of what is a very partisan process." The judge might have relevant knowledge of the nominee, Geyh said, yet "from the perspective of the business of maintaining the collegiality of a court, it's something to worry about."
Newman said he doesn't worry about getting involved in partisanship, especially when his input is kept confidential. "I regard it as professional, in that we have seen the person's work," he said. He added that judges frequently give similar input to the American Bar Association for its ratings of nominees.
The Republican criticism of Chatigny has largely focused on his role in the death penalty case of Michael Ross. A serial killer, Ross was nicknamed the "Roadside Strangler" for a string of killings in the 1980s. He was executed in May 2005, but not before Chatigny pressured Ross' attorney to reexamine his client's mental competence. Chatigny even threatened the attorney's law license, an act that prompted an ethics inquiry and for which Chatigny apologized.
Newman said he thinks the criticism has been unfair. He did not hear the Ross case on the 2nd Circuit, but he said he's familiar with it and thinks Chatigny was right to order an additional hearing to consider Ross' competence. "I think the criticism is understandable because of how terrible Michael Ross was, but as a legal matter, as an issue of the qualifications of a judge, I think the matter reflects favorably on the judge," Newman said.
A committee vote on Chatigny's nomination is scheduled for Sept. 30.
This article first appeared on The BLT: The Blog of Legal Times.