I should be delighted by President Obama’s nomination of Robert Chatigny to the United States Court of Appeals for the Second Circuit. The judge appears virulently opposed to the death penalty. He appears to think that sex offender registration laws are too harsh and punitive. He previously represented people accused of crimes. One would think I would be dancing in the streets with glee.
Instead, I am relieved that the United States Senate Judiciary Committee derailed the express train that was to rush the judge through the confirmation process before anyone had time to ask meaningful questions.
I am wary of Judge Chatigny, who has served for sixteen years as a United States District Judge. I am wary because there is a surreal Strangelovian feel to proceedings in his courtroom. His ethos is managerial, rather than judicial.
I am not alone in having misgivings. Folks across the state have thanked me since writing about him. But these folks don’t want to get involved. I am not sure what they are afraid of.
Consider the lightning quick pace of his confirmation hearing. He reports on his questionnaire submitted to the Judiciary Committee that in July 2009, Senator Dodd called to let him know he was considering nominating Chatigny. Just before Thanksgiving, the Office of Legal Policy of the Department of Justice called the judge to let him know he was in the hunt. On January 22, 2010, Chatigny traveled to D.C. for an interview at the D.O.J. The president nominated him on February 24, 2010, and then, presto chango, his confirmation was set for March 10. That’s a two-week turn around.
His handlers in the administration knew they had to act quick with this nomination. If they could spin this just the right way, the judge might be able to avoid troubling questions about his handling of the Michael Ross matter. The judge was unanimously rated well qualified by the American Bar Association, after all.
But questions did emerge. Mike O’Hare of the Chief State’s Attorney’s Office wrote a 12-page letter summarizing his reasons to believe that Chatigny is unfit to serve. O’Hare and appellate ace Harry Weller have apparently volunteered to testify before the committee about the judge. They believe the judge has shortcomings as a neutral and detached magistrate.
I have a suggestion for the Senate. I suggest that the Senate arrange to have a Connecticut inmate named Ramon Lopez brought before the committee to testify. Mr. Lopez is an inmate in the custody of the Department of Corrections. He has thus far filed four habeas corpus petitions of his own in state court. He has also filed a series of pro se lawsuits. Mr. Lopez apparently has a lot on his mind. I am sure he will share it.
According to Judge Chatigny, Mr. Lopez wrote him a letter about Michael Ross. Mr. Lopez contended that Ross had been brainwashed to abandon further collateral attacks. Experienced practitioners know to take inmate letters with a grain of salt. Desperate men say desperate things. And pro se litigants of the jailhouse lawyer variety sometimes get it wrong.
But the judge was green at the time. In his thirteen years of practice, a practice he notes was devoted one hundred percent to litigation, the judge had never tried a jury case to a verdict. Never. “I started trial as sole or lead counsel in a number of cases, but all were settled or dismissed,” he writes on his Senate questionnaire.
I don’t know what to make of that. Is the judge a cerebral version of Gerry Spence, the famed trial lawyer who claims never to have lost a criminal trial? A litigator who doesn’t go to trial sounds a lot like a surgeon who doesn’t operate. Or a judge who knows what outcome is just, if only the parties would get out of the way.
I’m glad Mike O’Hare raised questions about this nomination. I hope the Senate takes them seriously, and that it holds meaningful evidentiary hearings on the Ross matter. Opposed as I am to the death penalty, I dread more the specter of judges commandeering litigation to serve a managerial style that should remain foreign to the adversarial system of justice.
Reprinted courtesy of the Connecticut Law Tribune.