Confirmation hearings over whether Robert N. Chatigny should be confirmed as a judge of the United States Court of Appeals for the Second Circuit are a potential watershed event for the Senate Judicary Committee. Rather than degenerating into the sort of partisan wrangling pitting right against left over doctrinal matters such as how to interpret the federal Constitution, the hearing offers an opportunity instead to focus on an issue that should unite Senators of all political persuasions: Is Chatigny the right stuff to sit on the second highest court of the land.
The Senate Judiciary Committee will examine Chatigny today at 2:30. The Hartford Courant reports that the judge can expect close questioning about his demeanor as a judge. Because there are substantial questions about his demeanor, the committee should defer. There are more capable jurists ready for promotion, such as Janet Hall, sitting in Bridgeport.
Chatigny was appointed a federal district court judge by President Clinton in the mid-1990s. At the time he was appointed, he had never having tried a case to a verdict. Just what he would do in a courtroom was an open question. His legacy as a jurist is marred by his handling of a death row inmate's request to die with dignity, his candor in response to questions put to him about his political commitments, his managerial style as a jurist and his commitment to a transparent court system, and his respect for the role of juries.
The Michael Ross case.
Michael Ross was a convicted serial killer who, after a decade and a half of fighting imposition of the death penalty, decided to abandon further collateral appeals and simply be put to death. He was executed, and was the first person executed in Connecticut since 1960.
Ross was deemed competent to waive further appeals, but his family and death penalty advocates pressed claims to block the execution in the federal courts. Chatigny, as chief judge of the district, ended up with the case.
Whether anyone either than Ross had standing to decide what should be done with his waiver was the central issue. Ross had independent counsel, T.R. Paulding, to vindicate his right to make life and death decisions for himself.
Judge Chatigny shocked counsel in the case by opining in a hearing that Ross was perhaps the least culpable of the men on death row. His sexual sadism was an illness. Killing a sick man was wrong, and Paulding was perhaps less than zealous in supporting his client's right to die. When Paulding demurred, the judge threatened Paulding, telling him "I'll have your law license" if it turns out Ross was, in fact, unfit to make this decision.
This is the equivalent of an umpire stopping a baseball game to give a pitcher on the mound a pep talk. "If you want me to call strikes, you've got to aim a little higher. You know I am inclined to call high balls strikes." We'd boo such an umpire off the field. Why do we give a judge doing the equivalent a promotion?
Chatigny's behavior in the conference was so bizarre a member of the Connecticut Attorney Generals Office questioned the judge's impartiality.
I Forgot The Dog Ate My Homework
Chatigny of course denied any bias or partiality, but never disclosed that as a practicing lawyer he had once filed a pleading in the State Supreme Court seeking to intervene in the Ross case on behalf of Ross. When challenged about this later, he claimed simply to have "forgotten."
Just how a lawyer forgets his involvement in a case involving the state's most notorious serial killer is a mystery to me, unless, of course, the judge didn't forget at all. The claim of failed recollection has the tinny ring of the student's request for more time to complete an assignment because, er, um ... well, the dog ate his homework.
I am a criminal defense lawyer who opposes the death penalty. I also briefly represented Ross in civil proceedings about whether he should have greater access to reading material while on death row. What's more, I oppose many laws regarding sex offenders as savage in intent and application. I should love Judge Chatigny. But I do not.
Well before the federal sentencing guidelines were declared non-mandatory, Chatigny found the means to depart downward in pornography cases in a manner so routine as to have raised the ire of critics. His decision declaring sex offender registration to violate a person's civil rights also has drawn criticism, and was reverse by the United States Supreme Court. Internet chatter declaims the judge to be soft on sex.
Much though I appreciate his stand on these issues, I oppose his candidacy for reasons more fundamental than his rulings in particular types of cases. He takes an expansive view of a judge's role. He would be far more comfortable in a European setting favoring inquisitorial, judge driven proceedings. I have been involved in more than one proceeding before the judge in which he directed the parties to brief issues of interest to him, but of no interest to either party. This judicial tourism added time and expense to litigation that neither party was prepared to pay.
But you learn to obey the overlord's orders.
I am crossing the professional aisle in this case to join with Connecticut prosecutors, who have opposed the confirmation of Chatigny because of his judicial demeanor and temperament. He sought to impose a managerial ethos on the federal courts in Connecticut that led to new meet and confer rulings, filing requirements and conferences. His goal was to move cases more quickly. It does not appear to me that he succeeded in doing anything other than making busywork for idle hands. The docket still creeps in Connecticut.
Transparency and the Rule of Law
Although he calls himself an independent, he is the play pal of U.S. Senator Christopher Dodd, a lame duck whose wedding Chatigny performed not long ago. Before taking the bench, Judge Chatigny and his family, and his wife's family, contributed regularly to Dodd's war chests. After his appointment as federal judge, wags in the Connecticut courts marvelled at how the confirmation process was finagled to assure that the judge was senior over the other two federal District Court judges appointed at or about the same time. You see, first-come, first served when it comes to the paltry power of being chief judge of the district. These things matter to Chatigny and Dodd, Centurions casting lots over the robes of justice.
I have for many years been spared the necessity of appearing in Chatigny's courtroom. Cases of mine assigned to him were transferred many years ago in the "interest of justice." New cases of mine no longer appear on his docket. This is a gift for which I am profoundly grateful.
On his Senate questionnaire, the judge mentioned that the District kept a list of "certain lawyers" in whose cases the judge would not sit. I asked for a copy of the list. Request denied under the Freedom of Information Act, which exempts the Courts from transparency in such matters. Transparency anyone?
The judge's recusal from my cases took place long before the Ross fiasco. But it took place after a particularly lawless decision of Judge Chatigny's and two other judges on the Second Circuit that I criticized called Lee v. Edwards. In that case, the judge voted to overturn a decision remitting damages against a police officer in a malicious prosecution claim. The officer's lawyer had stipulated to municipal indemnification of the officer, thus making moot the man's capacity to pay damages. In reducing the jury's award from $200,000 to $75,000, the court held that a police officer's earning capacity was well known. Perhaps. But it was also irrelevant on the particular facts of that case. Why the judicial overreach?
The case illustrates the key to Chatigny's judicial Platonism. Judge, not jury, knows best what justice requires, even on matters of fact, a juror's domain. Such arrogance befits a judge who never once in his career stood in the well of a court and asked a jury for anything. The judge also scorns lawyers, hence his treatment of Paulding and his fantasy-land vision of the courts as judicially managed sausage factory.
Judge Chatigny will be all quiet humility, apologies and contrition before the Senate today. He will play this role because he wants something. Behind the velvet demeanor is the iron-fisted determination that he knows best. It is a demeanor unsuited for the second highest court in the land.
I suspect he will be confirmed over modest opposition. Demeanor isn't an important enough issue for other members of the power elite to use to mobilize voters. But it should be the most important issue of them all. When Chatigny is confirmed, there will be another stuffed robe on the prowl in New York City, hoping for a miraculous ride to the Supreme Court. The miracles should cease for Robert N. Chatigny. That he was appointed at all to the District Court should be miracle enough.