Senator Fasano's Assault On Independent Judiciary

            After today’s Senate debate on whether to confirm the nomination of Andrew McDonald as Chief Justice of the Connecticut Supreme Court, I made a resolution: I intend to contribute to, and work for, any candidate who seeks to replace Senator Len Fasano, R-North Haven.

            Fasano led the charge against McDonald, standing in the well of the Senate and parsing recent Supreme Court decisions in high-profile cases.  He urged his fellow Senators to oppose McDonald’s confirmation because he didn’t like some of the decisions McDonald, and fellow members of the Court, made. His colleagues obliged. McDonald was not confirmed.

            Fasano’s entitled to his opinions, of course. We all are. But if you cherish an independent judiciary, the sight of Fasano playing eighth justice (there are seven justices on the Connecticut Supreme Court) was terrifying.         

            Judicial independence is important. That’s why federal judges are given lifetime tenure. We want judges to decide cases according to law. We leave passion to the polling place.

            But Connecticut does not appoint judges for life. Every eight years, each and every judge must sit for a retention hearing, and be confirmed for another term.  I’ve heard judges suggest in the privacy of their chambers that they are well aware of retention hearings. Bold minds grow cautious before these hearings.

           Why is this a bad thing?

           Law is not mathematics or quantitative science. It takes years to learn and to master the law’s doctrines and core concepts. Learning to apply them takes even more time. A fair-minded judge must try to do his her best to apply legal doctrines to factual disputes in circumstances that are often tense and uncertain. The best judge is a judge focused solely on the task at hand, and dedicated to nothing other than the desire to get the decision right.

          Aristotle once wisely observed that “it is the mark of an educated man to look for precision in each class of things just so far as the nature of the subject admits; it is evidently equally foolish to accept probably judgments from a mathematician and to demand from a rhetorician scientific proofs.” Those educated and experienced in the law learn to respect its ambiguities.

          Politicians, especially politicians steeped in overheated partisanship, eschew subtlety.

          Because the law’s building blocks are imprecise, there is often room for honest disagreement about what getting it right means. That’s why Appellate and Supreme Court decisions are often accompanied by dissenting opinions. There’s nothing wrong with that.

            What is wrong is bullying judges with the threat of punishment if you disagree with their decision. It takes a wise lawmaker to learn to respect a judge whose decision outrages him.

            Senator Fasano is not a wise lawmaker.

            He talked from the floor of the Senate today about his disagreement with the Supreme Court’s decision releasing Richard Lapointe from prison decades after Lapointe was sentenced to prison for murder. Yes, the Lapointe decision was controversial: the Supreme Court recognized a new rule permitting it to make credibility determinations about experts, a role reviewing courts almost never embrace.

            But what, beyond that, does the Senator really know about the case other than that he did not like the outcome? My office took Lapointe’s direct appeal to the Supreme Court many, many years ago. The senator did not attend arguments. He never called to ask about the case. I doubt he ever read the briefs, or that he ever read more than a briefing paper on the Lapointe case.

            Playing eighth justice from the Senate floor was a disgraceful performance.

            Fasano also talked about the Supreme Court’s decision in the Michael Skakel case. He rebuked justices for writing about the possibility that someone other Mr. Skakel committed the crime. Justices can’t do that, he decried, calling it TV justice.

            This hideous chirping demeans the Senate and sheds a dark light on the Senator.

            Is he truly ignorant of the legal doctrine known as third-party culpability? Did he read the record of the habeas corpus proceeding that resulted in freedom for Skakel? The justices in the Skakel case read the record, listened to legal argument, and decided the case according to law.

            The Senator merely brayed.

            Sure, Senator, it plays well with constituents to strut tough on crime. But the courts are supposed to stand between a mob’s demand for rough justice and an accused. The tawdry example you set from the Senate floor today sends a message to sitting judges: The rights of the accused ought not to tip the scales of justice when the public demands a pound of flesh.

            I’ve met Senator Fasano. I know him to be a kind, affable man. It’s no wonder he knows electoral success. He is a crowd pleaser.

            But pleasing the crowd isn’t what judges do. Judging is solitary, often lonely work. The work of a judge is to take the condensed wisdom of centuries of legal scholarship and apply it to the crises and controversies of the day. Judges are entitled to do their work in peace; they ought not to be rousted by rabble-rousers.

            Shame on you, Senator Fasano. Your extemporaneous commentary on the law and simple-minded exegesis of difficult legal decisions discredits the Senate, and sets a new low mark in the state’s confirmation proceedings.

            Suddenly, the ethos of raw partisanship has crept from Washington, D.C., to Connecticut. We’re no better for it. I blame Senator Fasano in large measure. He could have behaved like a Solon today, giving wise counsel and respecting a process that has served this state well for generations.

            Instead, he declared war on an independent judiciary.

            I will never be a judge. I don’t have the temperament for it. But I am a trial lawyer. My clients and I depend on an independent judiciary in conflicts that are often desperate and life-altering. You undermined the judiciary today, Senator.

            Senator Fasano is now on a list I hitherto had not created: I’ll call it Lawmakers Who Ought Not To Serve Another Term.


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