Mark Dubois
Mark Dubois ()

The Neil Gorsuch nomination produced a few memorable quotes, which resonate here in Connecticut after Justice Richard Palmer’s recent reappointment travails. When testifying before the Senate Judiciary Committee, Gorsuch pointed out that judges are supposed to be more than politicians wearing robes. Amen to that.

Unfortunately, in most of the country, where trial and appellate judges and justices are elected, too many times they are just that: politicians wearing robes. History is replete with instances where litigants tried to game the system by becoming big donors to judges who end up hearing their cases. For instance, see Caperton v. Massey, which ended up before the U.S. Supreme Court, where a litigant donated something like $3 million to the campaign of a West Virginia justice who later sat on the appeal of a $50 million judgment against him. The donation was only 3,000 percent more than allowed by campaign laws, which the donor apparently evaded by using a cutout.

There are two alternatives to electing judges. The first, per Gorsuch, is lifetime appointment, as enjoyed by all Article III judges. The other, as in Connecticut, is merit selection. Unfortunately merit selection takes the “politics” out of qualifying for a judgeship but does nothing to remove the appointment from the political fray. The mantra for those wishing to don the robes is, while many are called, few are chosen, and the choosing is, in many instances, a political decision by the governor and Legislature. Even though judges and justices are appointed to eight-year terms, it’s not lost on many that full pension emoluments don’t vest until after 10 years, making even the most independent judges subject to re-examination in the political crucible at a particularly vulnerable time.

Gorsuch, who may well assume Scalia’s mantle of SCOTUS wag-in-chief if he keeps the patter up, noted that “ours is a judiciary of honest, black polyester,” and pointed out that attempts at political interference by other branches of government in judicial decision-making violated separation-of-powers principles, and risked weakening the public’s perception of the bench as being a place where both the weak and powerful are treated alike.

Those are points that might have been made on Palmer’s behalf.

Most people I speak with were surprised by Palmer’s rocky reappointment hearing, which went on for hours, with the vote coming days later. (The anti-guardian ad litem crowd had been making things difficult for some family judges in recent years, but that storm seemed to have passed.) From what I read, the anger seemed to be focused on his leadership on the recent decision abolishing the death penalty, a result that had been predicted by the attorney general when the Legislature, concerned about sparing the two Cheshire home-invasion killers, tried to carve out existing cases from application of their own repeal legislation. It could also have been his authorship of the Kerrigan decision, which legalized same-sex marriage.

A more sinister (or cynical) answer is that Palmer, with the rest of our Supreme Court, presently has before him the appeal of Judge Thomas Moukawsher’s decision on the way Connecticut handles education funding. Moukawsher, a former state legislator himself, had the cojones to say what everyone in Hartford already knew but refused to publicly admit: Our funding system is beyond broken, and so mired in political intrigue and entanglements that without a “deus ex machina”-like judicial intervention, it would never be fixed.

The governor’s new budget proposal has a new formula that favors 38 or so poor and urban school systems, and leaves more than 130 other towns and districts in the lurch. I can only imagine the level of upset, weeping and gnashing of teeth over that. How convenient to have one of the luminaries of the very court that is going to decide the case before the same Legislature that may be worrying over how to wrest control over the process back from the Judicial Branch.

Palmer is now back “across the street” from the Capitol, at the Supreme Court, and safe for another eight years. But the odor of his hearing will not soon dissipate. From what I know of the other justices, the recent flexing of political muscle will do nothing to change the result. But there may be some among us who will think differently, especially if the decision is overturned.

This is exactly the erosion of public faith in and support for the system of checks and balances that Gorsuch warned of in an overly politicized judicial selection and appointment process.