Most people I know think Andrew McDonald is a nice man, a good judge and deserved appointment as chief justice. Some—myself included—think a chief justice with experience such as McDonald’s, both in the legislative trenches and with the executive branch, might make him just the person to steer the judicial branch through the rocky shoals of our state of “permanent financial crisis,” which promises to become only more extreme when we get a new governor.
The bigger issue may be how l’affaire McDonald shines an uneasy light on the role of politics in judicial appointments. True, as a now-retired Supreme Court justice told a class of grammar-school kids I was showing through the New London courthouse a few years ago, a judge is a lawyer who is friends with the governor. Or at least with someone with enough political pull to get them onto the governor’s radar. It’s no secret that there usually are many more names on the judicial selection list than judge slots open. (Many are called, few are chosen.) Yet our system of judicial appointment, though inevitably political, has got to be way better than the process in many states where judges and justices are elected.
Yes, our probate judges are elected, and there have been few, if any scandals related to campaign shenanigans in that process, but those jobs are pretty much small potatoes compared with superior court and appellate judges and justices. I worry about a process where judges and justices have to defend their values and decisions in front of town committees, Rotary Clubs, Knights of Columbus and other gatherings of the hoi polloi. How’d you like to be representing a criminal client in front of a judge who just won a campaign or was seeking re-election on a “law and order” platform?
Unfortunately, our constitution does not provide for lifetime appointment of our state judges and justices. I say unfortunately because I think exposing sitting judges to reappointment hearings where unhappy and disappointed litigants vent their spleens about how badly they were treated during their divorces is awful. If you haven’t watched State Rep. Minnie Gonzalez cross-examine judicial reappointment candidates, you should look on YouTube. She channels a unique sort of crazy blend of Lucille Ball and Ricky Ricardo/Desi Arnaz while the other members of the judiciary committee twirl their pencils and pretend not to notice. It’s not pretty.
I was driving down I-91 in North Haven the other day and almost ran off the road when I saw a billboard urging that Judge Jane Emmons not be reappointed. I don’t know this judge, but bet you a dollar to a peanut that it’s all related to a divorce case. This is not the first and won’t be the last billboard. Of course, there was also a billboard urging McDonald’s appointment. I guess both sides can play that game.
McDonald got his own version of the Gonzalez roast in a marathon grilling over his nomination to be chief justice. His interlocutors weren’t unhappy litigants but Republican representatives and senators who seemed to be reveling in their new-found political strength, settling scores with the governor. Even if that is exactly what was happening (though those on the Republican side of the aisle deny it) that would be preferable to grilling a sitting justice over how he or she decided or would decide a particular case. It’ll be interesting to see if Justice Rick Robinson, the next on deck, gets the same treatment.
Our constitution sets the term of judge and justices at eight years. That’s too short a period of time for a judge or justice to become really schooled in the business of judging. It’s also two years short of the vesting date for full pensions. I think setting a longer term (15 years?) with a “one and done” program would be a better way to ensure judicial independence. I’d couple that with a more public judicial discipline system.
If you look at the stats of the Judicial Review Council, the number of hearings relative to complaints filed is witheringly small. Yes, as its annual reports point out, many complaints are from multiple filers (14 percent of the complaints in 2017 were filed by multiple filers; some filed as many as 10 or 11 complaints) and a lot of nutty stuff gets dumped on the council. But as it operates in secrecy until probable cause is found, many critics think it is covering up bad judging. I think it’d be better to open its doings to public scrutiny than to haul judges looking for reappointment before the Gonzalez star-chamber.
The constitution allows a governor to appoint a sitting justice of the Supreme Court as chief justice to serve for the balance of their appointment. With justices serving longer terms, that might be a better solution than dragging a sitting justice through the political mud or making them pass a litmus test, a process which cheapens all involved.
Sure, that’d require a constitutional amendment. Just like we amended the constitution in 1981 to create the Appellate Court.
Former Connecticut Chief Disciplinary Counsel Mark Dubois is with Geraghty & Bonnano in New London.