I will never forget a late afternoon chat I once had with now-Justice Sonya Sotomayor when she was sitting on the United States Court of Appeals for the Second Circuit. Had I considered becoming a federal judge? I ought to, she said. The Obama administration was looking for criminal defense and civil rights lawyers to fill spots on the federal bench. I flirted with the idea some, until I concluded that even if it were possible, the isolation is not for me.
A criminal defense lawyer on the federal bench? Someone tell that to the legal geniuses serving as talent scouts for Senator Joseph Lieberman, who, as senior Democratic Senator in Connecticut, will select a candidate to send along for an interview with President Barack Obama. The four finalists identified by the scouts are all good lawyers. The trouble all is all are either former federal prosecutors, occupants of seats in big law firms or government lawyers. These are hardly the sorts of lawyers who have set next to an impecunious defendant as the Government sought to roll over them in the name of justice. Neither are they Legal Aid types, acquainted with folks who can’t fork over big fees for billable hours. All vie for the slot vacated this week by Christopher Droney, who was elevated by a unanimous Senate to sit on the United States Court of Appeals for the Second Circuit.
At the top of the list is former Acting United States Attorney Nora Dannehy. She is now serving as Deputy State Attorney General after being passed over for the United State’s Attorney’s position. She is tough, a great lawyer, and a decent human being. She’d made a great judge, if the president decided he just had to appoint another prosecutor to the bench. We can thank her for providing the answer to the following trivia question: What household item put former Gov. John Rowland in hot water? (Duh. Hot tub.) She is a Harvard Law School graduate.
Victor Bolden looks interesting. He is a relative newcomer to the Connecticut bar, having been admitted here in 2000. Before that, he was admitted in New York in 1990. He’s punched a big-firm meter at Wiggin & Dana, and done a stint at the NAACP Legal Defense and Education Fund in New York. He currently works as corporation counsel for the City of New Haven. Of the candidates on the short list, he has the broadest range of experience, even if he has rarely, if ever, heard the words "not guilty" uttered in a courtroom. Another Harvard Law School graduate.
Jeffrey Meyers is my personal favorite of the group. Alas, he is a former federal prosecutor, but he jumped ship several years ago to teach at the Quinnipiac University Law School. He is a good writer, is possessed of a nimble mind, and cares deeply about justice, even if he does from time to time write to remind me just how off-base are my opinions about all manner of things. I almost forgive him his Yale Law School degree.
Michael Shea of Day Pitney rounds out the field of leading contenders, according to the Hartford Courant. He’s head of the mega-firm’s appellate practice. He earned a taste for abstraction at the feet of his father, former Connecticut Supreme Court Justice David M. Shea. St. Francis Hospital looks to him as a defender when the wrong sorts of things go bump in its corridors. I like the fact that he argued a death penalty appeal involving Michael Ross in the State Supreme Court. Were getting close, Mr. President. Another ivy leaguer, this one a graduate of the Yale Law School.
Each of these candidates would be a fine addition to the federal bench. They come from great schools. They have had careers in service of government, industry and interest groups. A few have even done a little pro bono work. But haven’t we seen enough of the same old stuff on the federal bench? Why is it that a public defender is never on the short-list of appointees? Why no small-firm lawyer who lives by his wits? A judiciary marching lockstep with the powerful and privileged hardly inspires confidence among the great unwashed, those folks who more often than not find themselves on the short end of the stick in a courtroom.
The fault for this limited field is not necessarily Senator Lieberman’s, at least not yet. The Senator assembled a selection committee to vet candidates. There wasn’t a criminal defense lawyer among the group. Stanley Twardy, a former federal prosecutor was there. Yes, he advertises himself as a white collar criminal defense lawyer. I just don’t recall ever seeing him in a courtroom standing next to a client without means. Then there’s Kathleen Nastri, a high-rolling plaintiff’s lawyer from Koskoff, Koskoff & Beider in Bridgeport, where verdicts are so large they replaced their bookkeeper with a scale, the better to weigh their money. And then there is Timothy Bates, former Chief Justice Ellen Ash Peters, Yale law professor Amil Akhil Reed Amar, and a few other high-flying stars of the big-time bar. Not a public defender, Legal Aid lawyer, or small-firm lawyer in the bunch. It is no wonder the product of the committee looks as it does: status is as status does, Forrest Gump might say.
Did anyone think to reach out to the likes of New Haven’s Todd Bussert, a young man of impeccable intellect and a defender of ordinary people? Or how about Dawne Westbrook, now a Superior Court judge, but experienced as a criminal defense lawyer, a civil rights lawyer and in the juvenile courts? What contact was made with the Connecticut Criminal Defense Lawyers Association to see who that group might recommend?
I am often amazed at how what one sees depends on where one sits. A judiciary composed solely of those who graduated from elite schools, worked for government and large corporations, and, for the most part, performed only on the well-financed stages won’t see the world most Americans inhabit. These are the sorts of jurists who are comfortable dealing out immunities to the rich and powerful when little people come looking for justice.
There’s still time, Senator Lieberman, to make a courageous nomination. The current leaders identified by your committee are all cut from the same mold. When is the last time a criminal defense lawyer was appointed to the federal bench? Does anyone on your committee know? Ask them, I dare you. And then tell them to go out and find one. They’re everywhere.