Monday, March 6, 2017

Why Question a Supreme Court Justice?

The recent editorial in The Connecticut Law Tribune regarding the role of the legislature in reviewing the reappointment of Justice Richard Palmer not only missed the mark of our state’s constitutional history and procedure, it actually contradicted itself in trying to argue for judicial independence and a rubber stamp approval of a justice.

Unlike the federal court system, where judges serve for life, our Constitution provides that justices are appointed to 8-year terms. Reappointment requires a legislative hearing and approval. The editorial seemed to indicate that any questioning of a justice was an improper violation of the separation of powers. I would argue that a lack of questioning would be an abdication of the legislature’s constitutional “check”, our duty to consider and approve a justice. Is the Judiciary the only branch of government worthy of protection in the editorial board’s eyes?

The editorial also decried any opposition to “judicial activism”, which it defined as “merely an indelicate euphemism for, ‘a position I disagree with.’" This is a petulant attempt at dismissing a theory and belief that a judge’s opinions should be based upon the law, not upon political or personal considerations, that the making of policy is a legislative function, not a judicial one. At least one justice recognized that, writing at the time of reappointment in 1999, “I do not believe judges are free to substitute their own views for those of the Constitutional framers or the legislature”. That justice was Richard Palmer. Why is it improper to now question him about substituting his views for those of the general assembly?

In his decision in Santiago II, Palmer ignored voluminous, unprecedented legislative intent to repeal the death penalty prospectively, arguably “substituting” his views for those of the lawmakers. The Chief State’s Attorney’s “Motion for Argument” states the opinion, “addresses issues, undertakes analysis and relies on materials that were never raised or presented by the defendant, and never subjected to any adversarial inquiry.” It also bases much of the decision on a shift in the “contemporary standards of decency.”

As stated in the editorial, "In his comments to the Program Review and Investigations Committee of our state Legislature, Judge Robert C. Leuba, then-chief court administrator, said, in October 2000, ‘judicial independence is critical to the functioning of any democracy,’ because it is the ‘duty of a judge to decide each case according to an objective evaluation and application of the law, without the influence of outside factors.’’ Palmer’s decision arguably involved the consideration of matters never raised by the defendant, as well as the nebulous “shift in standards of decency”. These were arguably “other factors” besides the law that were considered in the decision, but according to the editorial, should not be questioned. That is simply wrong.

Judicial activism should be shocking and abhorrent to all lawyers, legislators and citizens.

As to the fact that a majority had signed on to Palmer’s decision in LaPointe, and seemingly agreed to his harshly worded footnote, is not an excuse for Palmer. No other justice who signed onto the footnote was up for reappointment – only the author. In the interest of retaining civility at our state’s highest court, any justice who authors or agrees with such contemptuous writings should expect to be questioned about it at their time of reconfirmation.

The editorial continued, “It would be perfectly acceptable for legislators to vote against the confirmation of a judge whose lack of judicial temperament, ill manner and disregard for the rule of law have been well documented.” Judicial temperament and manners do not just extend to those appearing before a jurist. It is incumbent on the relationship with colleagues as well, and the recent writings of Justice Palmer raise legitimate questions as to his relationship with fellow justices.

The Law Tribune chooses to ignore the constitutional role of the legislature in the reappointment of justices and chooses to ignore serious issues raised by Justice Palmer’s decisions. They should not attack the General Assembly for choosing not to ignore their duty in such serious matters.