Connecticut does not elect its judges, and for that I am truly grateful. Judges who bow and scrape for approval have a tendency to use their discretion in the service of the lowest common denominator. But every eight years, each judge in Connecticut does face reappointment by lawmakers. And that process is almost as bad as facing election. It would be a far better thing if judges were appointed for life.
Consider the case of Judge Patricia Swords. She is a former state prosecutor. I've appeared before her. Her demeanor is stony. No humor. No sense of a mind at play or a spirit attuned to the human drama of lives hanging in the balance. She sits. She rules. She presides, Sphinx like, staring no doubt into the middle distance of what she perceives to be justice's thicket.
In my view, the law of opposites generally applies in the appointment of judges. Former prosecutors can be a good defense judge; former defense judges might be good prosecution judges. A former prosecutor know from experience when the state is bluffing, just as a former defender knows smoke does not always mean fire.
Judge Swords breaks that mold, according to some. She is a pro-prosecution judge. Or so it is rumbled among the anonymous millworkers of the defense bar. So when she faced confirmation hearings recently, she walked into a buzz saw. One defense lawyer, John Schoenhorn, appeared at her confirmation hearings to complain that seven years ago, in 2002, the judge had not granted a necessary continuance when a client's original counsel fell critically ill. Put another way, the judge abused her discretion by insisting the new counsel proceed immediately.
That is troubling, and it is the sort of stuff of which appeals are made. Schoenhorn, former president of the Connecticut Criminal Defense Lawyers Association, is known to be brash and outspoken. His testimony about a by now ancient incident that even the judge admits was probably an error looked peevish and self-serving.
But Schoenhorn looked like Solon when contrasted to Hartford Senator Eric Coleman. Coleman is a part-time lawyer of middling skill. He told fellow senators that he wanted Sword's hide because she had once jailed a client of his for violating a protective order. The Appellate Court agreed with Coleman, declaring that the judge erred. It was the only one of 25 decisions involving her rulings that led to a reversal. But the Senator is still peeved six years later. Simply put, Coleman doesn't look very senatorial in the role of chief masher of by now old, old, old sour grapes.
Judge Swords was narrowly approved for reappointment to another eight year term. The Senate was evenly divided on the question. It took a tie-breaking vote from the Lieutenant Governor to tip the balance in her favor.
Lawmakers are now wondering whether they need a better way to monitor judges. One leading Democrat wonders whether the time has come for more systematic evaluation of judges. But of what will that evaluation consist? Litmus tests of whether the judges ruled in favor of this client or that? Scorecards on whether a judge has a good demeanor? Will trade association of lawyers now lobby for the judges of their choice, with defenders ratting out pro-prosecution judges, and prosecutors targeting those judges perceived to yield too much to the defense?
I prefer an independent judiciary. Just the other day, I was in chambers discussing a case with the prosecution and a judge. A close call arose, and the judge mentioned his fear of what lawmakers might say years down the road if he made a close call. That's not justice. That's tap-dancing in anticipation of what passions may roil lawmakers. Far better to appoint judges for life. Remove them for high crimes and misdemeanors. To do otherwise is to make judges cower before folks with suspect agendas.