Should Supreme Court Justices Be Nominated Exclusively From The Ranks Of Sitting Trial Or Appellate Judges?Posted: December 31, 2012 Filed under: Appellate Law | Tags: andrew mcdonald 2 Comments
Governor Malloy recently nominated his chief legal counsel, Andrew McDonald, to fill a position on the Connecticut Supreme Court created by the retirement of Justice Lubbie Harper, Jr. In a just-published column, Manchester Journal Inquirer managing editor Chris Powell raises a number of questions about McDonald’s nomination. As a former state legislator and as the governor’s legal counsel, Mr. McDonald has taken strong positions on a variety of issues, including religious liberty and freedom of information. Powell is right to identify these issues, and asking Mr. McDonald about them during his confirmation process is both legitimate and appropriate.
But Powell also makes some statements about appellate nominations in general with which I respectfully disagree. Powell writes:
Getting put on a supreme court without having any judicial experience is a neat trick even if some policy analysts argue for staffing supreme courts in part with people with broader life experience and there is precedent both nationally and in Connecticut.
Earl Warren was nominated as chief justice of the United States by President Dwight D. Eisenhower without having been a judge, just an attorney general and governor of California.
And Gov. Ella T. Grasso nominated Ellen Ash Peters to Connecticut’s Supreme Court though she had never been more than a professor at Yale Law School.
As chief justice nationally, Warren helped end racial segregation and strengthen civil liberty. As chief justice in Connecticut, Peters helped wreck public education, public finance, and even the English language. But these were the results of their ideologies, not their lack of experience as judges.
With McDonald the question is whether his experience off the bench is really so much more compelling than his lack of experience on it. Indeed, in the old days in Connecticut — that is, until Malloy’s election two years ago — while governors sometimes would reward political friends with judgeships, they would have a little humility and start at the bottom, with the Superior and former Common Pleas courts, not at the top with the Supreme Court.
But this is the age of Linda McMahon, and maybe Connecticut has run out of Superior and Appellate Court judges deserving promotion. Or is Democratic Party control of government here now just so tight — the governorship, big majorities in both houses of the General Assembly, and all seats in Congress — that there’s nothing left for the party but to start grabbing at the Supreme Court?
Let’s consider Powell’s position, reflected most strongly in the last two paragraphs, that the “proper” or “correct” way to fill an open position on the Supreme or Appellate Court is to elevate/promote an existing trial or appellate judge. Powell offers no support for the position. To be sure, that is the customary practice, but that does not mean that it is the only way to pick good appellate judges. Let us not forget that former Connecticut Supreme Court Chief Justice William “Tocco” Sullivan had several decades of experience as a trial judge before he was elevated to the Appellate Court, then the Supreme Court, and then to Chief Justice. Yet he ended his otherwise honorable career by displaying a troubling lack of judgment when he intentionally delayed publication of a Supreme Court decision for inappropriate, political reasons.
Powell seems to “poo poo” the idea of appointing people directly to the Supreme Court who bring with them broad life experience, particularly experience in other branches of government, suggesting that only “policy analysts” advocate that position. To the contrary, many thoughtful commentators recognize the value of having at least some members of a Supreme Court who have not spent virtually their entire professional lives as judges. I, for one, believe there is considerable merit in having former legislators sit on the Supreme Court. They understand how legislation is actually drafted, and that experience can inform–in a positive way–their interpretation of statutes generally.
Moreover, appointing distinguished individuals to the Supreme Court, even though they have no prior judicial experience, was once the norm at the federal level. For example, beyond Chief Justice Earl Warren, Justices Douglas, White, Goldberg, Jackson, Powell, Rhenquist and Frankfurter were all appointed directly to the United States Supreme Court. Many commentators yearn for a return to those “good old days” instead of the present system in which Supreme Court judges are generally nominated from the ranks of federal circuit court judges. (Justice Elena Kagan was an exception. She had no judicial experience, but served as President Obama’s first solicitor general.)
Powell also seems to suggest that, with the exception of Ella Grasso’s appointment of Ellen Ash Peters to the Supreme Court in 1978, Governor Malloy is the first governor to appoint someone to the Supreme Court who has no judicial experience. That suggestion is incorrect. Governor Weicker appointed Richard Palmer directly to the Supreme Court; Palmer had no prior judicial experience. But he had extensive experience as a lawyer, including as Chief State’s Attorney and Acting U.S. Attorney. (It also helped that he played tennis with Weicker.) Governor Weicker also appointed former justice Joette Katz to the Supreme Court when she had but four or so years of trial court experience. People can agree or disagree with the decisions of these two individuals, but both were/are very fine Supreme Court justices.
I also take issue with Powell’s broadside attack on former Chief Justice Ellen Peters, who he describes as having “wrecked” public education, public finance and even the English language! (Disclaimer: I had the high honor of clerking for Chief Justice Peters in 1990-91. I am naturally protective of her reputation.) To be sure, her decision in Sheff v. O’Neill, which addressed racial disparity in the Hartford School system, is subject to many legitimate criticisms. But “wrecked?” I cordially invite Mr. Powell to explain his position in more detail on this blog.
My point is simply this: There is no single, right “route” to the Supreme Court. Picking someone with broad life experience outside the judiciary is every bit as legitimate as simply elevating a sitting trial or appellate judge. What matters is the person.
UPDATE: An alert reader has informed me that there are a number of other examples–before the 1978 appointment of Ellen Peters–of individuals being appointed directly to the Connecticut Supreme Court. Raymond Baldwin is one such example. He served as Governor from 1939 to 1940, then again from 1942 to 1944, was elected to the United States Senate in 1946, and was appointed an associate justice of the Connecticut Supreme Court in 1949. He became chief justice in 1959 and served in that position until his retirement in 1963.
Wes Horton has also informed me that Justice John K. Beach, who served on the Supreme Court from 1913 to 1925, was also appointed directly to the state high court bench.
This is a very cogent response and defense of Supreme Court nominations. The attacks on Justice Peters and the nomination of Andrew McDonald are quite abominably gratuitous. I also wholeheartedly agree with decrying the needless myopia in naming federal appellate judges alone to the U.S. Supreme Court in lieu of state supreme court judges-and the point about Justice Sullivan and the Clerk of the G.A. 7 fiasco is also quite apt.
I will say this though: The former practice of seniority based appointments was a wise one-a way for learned and experienced judges like John Comely, Arthur Healey, Leo Parskey, Anthony Armentano, Anthony Grillo, Joseph Dannehy, Robert Berdon, Barry Schaller, and Lubbie Harper to cap off their careers as Justices of the Supreme Court-and further contribute to the development of the law of Connecticut. (Justice Berdon’s appointment was probably not all seniority-but that’s beside the point-he had been a Superior Court Judge for 18 years and was the most senior judge before Weicker elevated him.)
But there is no single route to the Supreme Court. Nor should there be-and nor should there be myopia or faction informing who gets appointed. Merit and scholarship should inform judicial appointment. And merit is not always prior service as a judge.
At the risk of seeming abominably selfish and arrogant, I respectfully proffer this as further insight into who we should have on our Supreme Court:
(P.S. I am a great admirer of your interview project.)
This debate is now playing out in our sister state to the West.
Seems to me that they could use a dose of Ellen Ash Peters in their memory.