Just over a year ago, this Law Tribune Editorial Board published an editorial in support of the re-appointment of former Connecticut Supreme Court Justice Richard Palmer. Palmer’s re-appointment had been faced with opposition in the Judiciary Committee on the basis of his votes in several high-profile cases as well as a charge of being an “activist judge.”
In our editorial, we cautioned the Legislature against going down a dangerous path of getting caught up in partisan, outcome-oriented opposition that had so infected the judicial nomination process at the federal level. Palmer, we urged, should be re-appointed because he was eminently qualified.
Here we are, once again, with an even greater fight about the nomination of Justice Andrew McDonald to take over from the retiring Chief Justice Chase Rogers. It is of note that this is not a hearing on McDonald’s fitness to be a member of the Supreme Court; that happened in 2013, when the Judiciary Committee approved him by a vote of 40-2; the state Senate by a vote of 30-3; and the House by a vote of 125-20. These numbers are about as unanimous as one can get from a deliberative body in the United States today.
No, today it is McDonald’s ascension to an administrative position within the judicial branch that has caused legislators of all stripes to suddenly question his qualifications and his temperament—not related to writing opinions and ruling on legal questions, but his ability to head up the administrative functions of the branch.
Just like Palmer before him, McDonald has been peppered with questions about his votes in cases and has been labeled an “activist judge,” which really means to the questioner “a judge who ruled in a way I don’t like.”
However, as an article recently published by attorney Wesley Horton shows, McDonald’s votes and opinions in cases cover the entire political gamut and his positions should sufficiently enrage and please those on every side of the political aisle.
We continue to be extremely concerned by the direction of our Legislature when it comes to evaluating the fitness of nominees to the bench. The questions asked of McDonald seem to be focused less on his intellectual ability and his legal qualifications and more on the outcome of cases in which he participated. This is a dangerous path to go down: When the litmus test for appointment of a judge becomes voting in consanguinity with the political opinions of a legislator, judges stop being independent arbiters of the law and start becoming beholden to political opinion.
Justice Felix Frankfurter once wrote in United States v. Rabinowitz that “[i]t is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.” Being a judge is a difficult job, and judging involves making difficult decisions based on an application of established law to fact and ruling in accordance with the Constitution. Often, making difficult decisions means siding with those who society disapproves of or shuns and making rulings that may well be contrary to public opinion.
If the Legislature is permitted to continue down this path of holding nominees hostage to its decisions, judges will be afraid to make these difficult choices their job requires them to do. Those who stand be hurt the most are people who already live on the fringes of our society. If judges are to be graded based on how much their rulings align with the political views of those who have control over their continued employment, they will think about reappointment first and justice second.
An independent judiciary is paramount to a free society. We call on our legislators, once again, to approve the nomination of McDonald because he is qualified to do the job. That’s really the only relevant question.