It is sadly inevitable. United States District Court Judge Robert N. Chatigny will be approved by the Senate Judiciary Committee for a seat on the Second Circuit Court of Appeals. I am told this by folks who pretend to know such things. The vote on his nomination could be as early as today.
I am not a fan of Judge Chatigny's. He's been a district court judge in Connecticut more many years. But when he took the bench, he had never tried a case to a verdict. While there is nothing wrong with learning by doing, I found his demeanor and manner on the bench stiff, unwelcoming, even bizarre. He thought likewise or worse of me, and declined, after several trials, to sit on my cases any longer.
When I tried to find out what other lawyers had found their way on to the judge's banishment list, the Court clerk told me such information was not public. It is protected by the Freedom of Information Act. Oh, that lawyers had the same privilege of secretly requesting that their cases not be heard by judges in whom they had no confidence. Power has its perquisites.
Judge Chatigny's nomination was stalled when a member of Connecticut's Chief State's Attorney's Office wrote to the Senate Judiciary Committee complaining of the judge's high-handed ways in post-conviction proceedings for Michael Ross. Ross had elected, after almost two decades of legal wrangling, to die. He wanted no further action taken on his behalf. So he obtained counsel to protect what amounted to his right to die.
Federal writs flew, and they landed on Chatigny's desk. The judge was chief judge of the district at the time, so their arrival in that chambers was no doubt intended. But wait? Hadn't the judge once filed a brief pleading on behalf of Mr. Ross when he was in private practice? The judge forgot all about it, he later claimed. But he was every bit the advocate for Mr. Ross on the bench, threatening Ross's lawyer with disbarment at one point in the proceeding. Friends who were on that conference call, including a lawyer for one of Mr. Ross's relatives, called me incredulous at the judge's behavior.
But all is, apparently, forgiven. The Second Circuit disposed of the grievance filed against the judge with a wink and a nod. And now three prominent Republicans have written a letter singing the praises of Judge Chatigny. Former United States District Judge Alan Nevas, and former U.S. Attorney's Stan Twardy and Kevin O'Connor have written to the judiciary committee to demonstrate bipartisan support.
This trio of barristers, I call them the "Do I Dare To Eat A Peach Club," means well. Connecticut's federal bar is a close-knit, clubby fraternity. (More men than women still, I suspect, but call it a sorority if it suits you.) But their praise of the man has the hollow ring of toasts at a wedding dinner. What did you expect these power brokers to say? Chatigny is, after all, a member their club. I have only once attended a meeting of the federal bar club, despite have tried scores of cases in the Connecticut federal courts. I was a stranger in an even stranger land; I won't be returning.
The Connecticut Post reported yesterday that the Senate may act on Chatigny's nomination as early as today. Expect a few barbs and then approval.
But before anyone rubber stamps him, will one of the Senators at least assign a clerk the task of reading a case captioned Lee v. Edwards
? This is a Second Circuit decision from the mid-nineties. Chatigny sat by designation on that panel.
In Lee, a jury awarded a man a verdict of $200,000, after trial in a malicious prosecution case. The defendant was a police officer. At trial, the lawyer for the police officer stipulated that the defendant's municipal employer would pay any award of damages, thus making moot whether the officer had the capacity to pay the sum.
The Second Circuit remitted the verdict, reducing it to $75,000. Why? Everyone knows police officers don't have that kind of money. Huh? There was no evidence of capacity to pay in the record. Counsel stipulated the City would pay. Why make up facts that either are not in the record or are not even relevant as the issues were framed?
The case was mine on trial and on appeal. I wanted to file a petition for certiorari. hadn't the panel gone outside the record? This was wrong, I railed. My partner at the time, John Williams, counseled despair. "The Court will never hear it. Judges love cops, and will do almost anything to protect them."
Someone on the Senate please ask Chatigny about this case. Even more than a decade later the decision in Lee v. Edwards strikes me as lawless. Why don't folks complain about judicial activism when it serves those in power?
Note: More on Chatigny. See Don Pesci