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.


In re: Andrew McDonald -- Shame on Senate Republicans

Just why the Republican Party is intent on importing the same level of asinine partisan vitriol rampant in Washington, D.C., to Connecticut is a deep, and troubling, mystery. This is a small state. Ideology ought not to trump civility; we actually used to get things done here. But the ideologues want to stop that.

         I am referring the opposition among state Senate   Republicans to the nomination of Andrew McDonald to the position of Chief Justice of the Connecticut Supreme Court.

         McDonald is the choice of outgoing Gov. Danell Malloy, a Democrat, to serve as the state’s top judge. McDonald is well-qualified. He has served on the high court as a justice since 2013.

         I had reservations about him when he was first appointed. He had served as a lawmaker and as an aide to the governor. Appointing non-trial lawyers to serve as judges or justices makes about as much sense to me as making salesmen of medical textbooks surgeons. Some things you learn by doing, and that includes learning the law’s rhythm.

         But over the years, I have appeared before the Connecticut Supreme Court any number of times. Justice McDonald was part of the panel. His questions were always – or almost always – to the point. He grew into the role of justice. He learned the job by doing the job.

         He would have made an excellent chief justice. No serious student of the law, and no serious litigator who actually appears before the high court, doubts that.

         Only the mudslingers in the state’s Republican Party made a case against McDonald. Speaking in code, because they lack the courage to speak candidly, they note that were he confirmed, he’d be the first “openly gay” chief justice in the United States.

         So, what? I’ve never had a moment to think about his sexual orientation when fielding questions from him in open court. I am about as interested in his sexual orientation as I am in the intentions of the framers of the federal constitution some 200-plus years ago.

         Which brings me to another of the hackneyed claims of Republicans: McDonald is a “judicial activist.” This is risible tripe, and any lawmaker using it as a pretext for opposing McDonald ought to be booted from office and made to sell pencils for a living.

         Judges are not automatons. They make judgments. I want a judge unafraid to follow the law where the judge thinks it leads. The last thing Connecticut needs is a bench peopled by jurists afraid that angry legislators will note reappoint them every eight years if the judge makes an unpopular decision.

         The law respects courage; cowards kowtowing to angry mobs are free to run for the Senate.

         The claim of activism is framed most often in Connecticut in terms of McDonald’s vote to declare the death penalty unconstitutional in Connecticut. You can disagree with his decision, but you cannot deny that the law is changing nationwide as to the death penalty, with more states banning it as a barbaric vestige.

         Shame on State GOP Chairman J.R. Romano, who is drumming up homophobic hatred and rage over commuted death sentences as a means to block McDonald’s appointment. If this young tryo wants to mud-wrestle, let him find a job in Washington, D.C., where gridlock is the new pastime. We don’t have time for thuggery.

         And shame, too, on Senator John Kissel, R-Enfield, who refused even to meet with McDonald before deciding how he’d vote. That’s not mature, Senatorial, judgment. That’s the ethos of a schoolyard bully.

         But my deepest disappointment is in Senate Republican leader Len Fasano, R-North Haven. He leads the cabal of naysayers opposed to McDonald. He feigns “outage” over claims of Republican homophobia.

         When the state needed leadership, Senator Fasano, you blew a dog whistle. Your outrage is translated into my disgust. I hope you pay for this partisanship at the polls.

         There’s something seriously wrong in the republic. We fawn over a porn star who has sex with a celebrity. We politicize the act of judging as though there were no neutral principles that can be applied to people of all types by judges of good will.

         We’re tearing ourselves apart as roads crumble, an opiod epidemic worsens, and the gap between rich and poor grows wider.

         So go ahead, Senate Republicans, gloat over your silly obstructionist triumph. You’ve kept a gay opponent of the death penalty from being chief justice.

         Gloat, but don’t dare call this good governance.



About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis


Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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