Given the great length of time it took for the United States Senate to schedule the unanimous vote approving Christopher Droney for a seat on the United States Court of Appeals for the Second Circuit, it is unlikely any nominee proposed to fill Droney’s now vacant seat on the District Court will be acted upon before next November’s general election. Perhaps that is good. The next administration, whether it be a new Obama team or a Republican replacement, needs to take a long, hard look at how judicial nominees are vetted.
There is a Strangelovian quality to the screening process in Connecticut.
Those invited to apply for the district court were required to fill out a questionnaire. To get an invitation to an interview, a nominee had to sign a confidentiality agreement that reads as follows: "I hereby declare under the penalty of perjury under the laws of the State of Connecticut and the United States of America that my interactions with the Advisory Panel, Senators Lieberman and Blumenthal, and their staffs regarding my efforts to be federal district court judge for Connecticut will remain strictly confidential."
I am not sure what this means. Under Connecticut law, for example, a person commits perjury when they make a false statement under oath in an official proceeding. Quite frankly, I’ve never seen the perjury statute evoked in this matter. Do the legal geniuses on Senators Blumenthal’s and Lieberman’s staff think they can have someone prosecuted for perjury if the person violates a pledge of secrecy? That’s just goofy. Perhaps the first question the committee screening candidates ought to have asked is whether the declaration has any meaning.
But we’ll never know what was asked. The candidates took their oaths. And they all want approval from the Big Daddies in the Senate. So mum’s the word on who was vetted and how the vetting process works.
That is, until someone on the staff of one of the Senate staffs decides to blab about the top candidates to The Hartford Courant. The state’s largest paper reports that the committee, composed of blue-chip lawyers, a former state Supreme Court chief justice, and a legal academic, has four top choices: Harvard’s Nora Dannehy and Victor Bolden, and Yale’s Jeffrey Meyers and Michael Shea. All are perfectly fine candidates for the job; the Wonder Bread of the law’s bakery. Yet not one of them has ever defended a person accused of a crime or worked in a small firm representing ordinary people in disputes with government and corporations.
To a depressing extent, these nominees represent the same old stuff.
I would love to know more about the vetting process. Why, for example, is Akhil Reed Amar of the Yale Law School on the panel? Sure, he’s a certifiable legal academic. He writes great books that I enjoy reading. And he even earned straight A’s as an undergraduate at Yale – it’s right there on his Yale website. But when I read the man’s curriculum vita it is not clear he has ever been anything other than a tourist in a courtroom. Letting Amar vet candidates is a lot like making someone who has never operated on a live human being chair of a surgery department. You can’t just read about what goes in a trial court and get it. It just isn’t possible.
I can well understand why the committee wants to keep the names of candidates confidential. Clients might feel abandoned if they know their lawyer is out looking for another job. But as near as I can tell, the top candidates, at least, work in large institutional settings were personal loyalties aren’t as pronounced, and paychecks are guaranteed. I wonder if any actual trial lawyers representing the accused applied for the job? If so, why aren’t they on the short list?
Why not publish the questions that were asked so that we can learn more about what values the Senators are looking for in a judge? Clearly, the screening panel was designed to save the Senators the task of meeting with each candidate. Why can’t we know what was asked? Why the super-duper, secret hush-hush tomfoolery of a stupid looking threat of a perjury prosecution?
Yes, I bring an agenda to the topic. I cannot fathom why criminal defense lawyers with actual trial experience are rarely, if ever, elevated to the bench. Is it any wonder the courts spew out immunities and excuse government misconduct with such ease. We never seem to get a jurist who looked the government in the eye and refused to blink. Our candidates all seem cut from the same, tedious and conformist cloth. They’re all brilliant institutional defenders with just the right pedigree.
The vetting process looks more like the secret application to a country club than it does evaluation of the best men and women to judge fairly disputes between citizens and between the citizens and their government. Senators Blumenthal and Lieberman can and should do better. So, for that matter, should President Obama. Weren’t we promised change?
Reprinted courtesy of the Connecticut Law Tribune