Why No Ideological Warfare In State High Courts?

When there is a vacancy on the United States Supreme Court, legal academics, interest groups, and journalists go into overdrive speculating about who the new nominee shall be. Great issues of the day are rehearsed, and judicial doctrine is transformed into the club of interest groups. The high court, we are led to believe, is a place of great intellectual drama.

            Why then is nary a peep heard when a state Supreme Court vacancy occurs? State Supreme Courts are the courts of last resort for most litigants. Why aren’t these nominations transformed into ideological battlefields?

            Justice Joette Katz’s decision to step down from the Connecticut Supreme Court caught most of us by surprise. Why would she leave the high court to become leader of the beleaguered Department of Children and Families? To most of us, leaving the mini-Mount Olympus for the likes of Walmart is, to say the very least, paradoxical.

            Governor-elect Dan Malloy will soon have a chance to nominate her replacement to the Court. Absent from the state’s newspapers are angst-ridden stories about the meaning of it all. The state’s interest groups aren’t holding press conferences demanding their vision of the state’s constitution be embodied in the next justice. We behold the filling of this seat less with a sense of ideological zeal than with the fascination that comes of wondering who will become captain of the high school football team: We all have our favorite candidates, but we don’t really care all that much about who gets the job.

            I say that is a healthy thing. The nomination of federal justices has become a farce. In the mad dash to make sure just the right ideologue is appointed, interest groups, intellectuals and academics trot out their favorite bromides about what the law is and should become. The nation’s talent pool is scoured for a capable candidate without a controversial record. Then confirmation hearings are held in which the candidate says as little as possible about the issues everyone calls vital. We select federal Supreme Court justices in much the same way streetwalkers are appraised in the dark of night: they need to look just so, but please don’t let them say too much.

            The nomination and confirmation of state Supreme Court justices seems more civilized and more honest. In fact, the law is not a vast ideological game, at least not as it is practiced by people who go to court and represent folks day by day. The law is a pragmatic response to crisis. Give me a client with interests; my job is to advance those interests as well as the law and my wits will permit. The state Supreme Courts have yet to fall prey to the ideological silliness of such groups as the Federalist Society. I hope it remains that way.

            Several names are mentioned repeatedly around the state as potential justices: Judges Linda Munro, Linda Lager, Luby Harper are names I have heard. All are good candidates. The Lindas are both experienced trial judges, and plenty smart. Frankly, I would hate to waste Munro’s talents as a trial judge on the high court. She manages high-conflict divorces as well as anyone in the state. Moving her from the frontiers of equity and sound discretion to the doctrinal confines of the court seems almost cruel.  Harper is on the cusp of retirement. Lager would do well; the appointment might soften a sometimes harsh courtroom demeanor.

            I have my own favorite, although I have yet to hear his name whispered by those in the know: Why not Elliot Prescott? He is young, smart, scholarly, and by now a veteran trial judge.

            The fact is, any of hundreds of lawyers in the state could fill the role of Supreme Court justice. The joy of considering who next shall serve on the high court is that we can do so without the ideological silliness accompanying a federal appointment. This is the way the process should work: Pick a good lawyer, stick him or her behind home plate, and let them call balls and strikes. I wish the federal game were played as well.

Reprinted courtesy of the Connecticut Law Tribune.


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