Chapter III
Judicial Selection Process
There are three main entities involved in the nomination and appointment process for judges: the Judicial Selection Commission; the Office of the Governor; and the legislature. The Judicial Review Council, the state agency charged with handling misconduct complaints, is also involved in an informational and advisory way. The judicial branch also provides information and judicial administrators can be communication links between judges seeking reappointment and the entities engaged in the process.
The focus of this study is on the legislative role in the judicial selection process. However, the legislative part of the process comes after other significant activity on the part of the Judicial Selection Commission and the governor's office. (Figure III-1 sets out the overall process.) This section describes the entire selection process.
Judicial Selection Commission
The Judicial Selection Commission is a 12-person commission charged with evaluating and recommending to the governor for nomination: 1) new candidates for judgeships (typically for the Superior Court, but also for the Appellate and Supreme Courts); 2) judges whose eight-year terms are about to expire, who wish to be reappointed to the same court; and 3) judges who seek elevation to another court (e.g., from Superior to Appellate). The governor may only nominate persons recommended by the commission. (Chapter II describes the makeup of the commission.)
The processes by which the commission conducts its work are detailed somewhat in statute and further in commission regulation. The Judicial Selection Commission has two distinct tasks. One is to screen new candidates for possible nomination for judgeships. The other is to evaluate incumbent judges for reappointment to the same court (judges who want to move to another court are considered new candidates.) Both the commission's authorizing statute and accompanying regulations reflect the two different functions of the commission. To carry out its functions, the commission meets once a month, and holds additional meetings if needed.
Incumbent judges. Typically, the eight-year terms of several incumbent judges end each legislative session. Assuming a judge wants to be reappointed as an active judge (i.e., not retiring early at age 65), and has not reached the mandatory retirement age of 70, the judge needs to go through the selection commission evaluation process. The commission must decide to recommend the incumbent judge for nomination in order to place the judge's
Figure III-1. Judicial Appointment and Reappointment Process
name on the appropriate list for the governor's consideration.
Figure III-2 sets out the steps in the JSC process for evaluating incumbent judges. As the figure shows, the commission statute contains some time frames within which the commission must act when considering incumbent judges. Two deadlines stand out: 1) the commission must make its nomination recommendation for reappointment before the judge's term expires; and 2) if the commission cannot recommend a judge for reappointment after a preliminary examination and an interview, the commission must conduct a formal hearing, giving the judge notice of the hearing at least 180 days before the start of the legislative session.
Application. Because of its deadlines, the commission begins its process for incumbent judges about a year before their terms expire, with the commission contacting the judges. The commission asks the judge to confirm he/she is interested in being reappointed and sends an extensive application to filled out.1
The application asks a series of questions addressing the following areas:
The judge also may provide any additional statement about other judicial or personal experiences relevant to the renomination. Along with the completed application, the judge also submits a general release for the judicial performance evaluations and any Judicial Review Council complaint materials. The release also states the information obtained by the Judicial Selection Commission may be shared with the Office of the Governor and the Judiciary Committee.
At this early stage, the commission publishes notices listing the incumbent judges up for reappointment in the Connecticut Law Tribune and the Connecticut Law Journal, two publications read by the Connecticut legal community. Notices are also posted in courthouses around the state. The notices request anyone with pertinent information about these judges to contact the commission. Also, the selection commission traditionally sends letters to the Judiciary Committee chairs requesting any comments the chairs might make about any incumbent judge.
Figure III-2. Judicial Selection Commission Process for Incumbent Judges
A year before term expires, JSC contacts incumbent judge
Preliminary examination. Once the commission receives the completed application, it begins what is called the preliminary examination. Figure III-2 sets out the type and sources of information the commission regulations identify as being used. The commission's one full-time staffperson gathers the pertinent judicial evaluation reports and any Judicial Review Council complaint material and recommendation. This material, along with the completed application, any pertinent correspondence, and any newsclippings, is organized into packets for each commission member. The commissioners review the written material and interview people they believe might have insight into the judge's performance. (The criteria with which the judge is to be assessed is set out in statute and regulation, and is discussed below). After some preliminary discussion among the commissioners, it may be decided that additional information is needed. Thus, for example, more people could be interviewed and pertinent court decisions could be reviewed, as well as any transcripts of judicial proceedings that could be helpful to the commission's task. Generally, the commissioners themselves do this work. As required by statute, all information received by the commission is maintained confidentially,
Interview. After the commissioners review the information noted above, the judge is interviewed by the whole commission. During the interview, the judge has the opportunity to answer any questions arising out of the material reviewed or interviews conducted. Regulations require the commission to vote within 30 days after the interview on whether to recommend the judge for reappointment, or decide further inquiry is needed in the form of a formal hearing. However, an interview with a judge can be continued by a majority vote of the commission in order to get more information if needed to make the recommendation decision, postponing the 30-day decision trigger.
If, after the interview, the commission cannot make a favorable recommendation about a judge, the commission must begin the formal hearing process. An incumbent judge cannot be denied a recommendation for reappointment without the opportunity of a formal hearing. The hearing is subject to timing and procedural requirements, such as allowing the hearing to be open if the judge so desires.
Voting rules. After the pertinent materials are reviewed and the incumbent judge is interviewed, the commission meets and discusses the judge's evaluation in the context of the statutory and regulatory standards (discussed below). There are specific voting rules applicable to incumbent judges. A simple affirmative majority vote is required to recommend to nominate an incumbent judge. An affirmative vote of at least a majority plus one of the members present and voting is required for denying recommendation for nomination of an incumbent judge to the same court. Votes for incumbent judge can be by secret ballot. The commission notifies the incumbent judges about the vote results.
Deadline impact. What the commission time frames mean can be illustrated with the judges whose terms expire during the 2001 session. Any judge whose term expires next year should have found out by July 7, 2000, that the commission was recommending him/her for reappointment, or that there was some kind of a problem requiring a formal hearing. July 7, 2000 is 180 days before the start of the 2001 legislative session. Further, based on commission regulations, if there was a need for a formal hearing, the hearing would have had to begin between August 7 and August 23. Whenever such a hearing ended, the commission would have 20 days to make its decision. (In fact, these formal hearings rarely occur.)
Criteria. The process described above is intended to permit conclusions about a judge's qualification for reappointment, guided by the statutory and regulatory criteria of what a qualified judge is. The commission is directed by statute to "consider the legal ability, competence, integrity, character, and temperament" (and any other relevant information) when evaluating a judge for reappointment. Again, there is a statutory presumption for retention for incumbent judges, with the burden of rebutting the presumption on the commission.
Commission regulations in place since December 1994 contain "minimum qualifications" that apply to both incumbent judges and new candidates, along with specific evaluation criteria for incumbent judges. The minimum qualifications are as follows:
1. The candidate has a reputation for truth, faithfulness, honesty, integrity, and fair dealing.
2. The candidate possesses "judicial temperament", which means that he or she possesses those personal qualities of patience, industry, courteousness, demeanor, and faithfulness to the duties of the office which are essential in a good jurist.
3. The candidate possesses legal ability that is exemplified by professional excellence, a degree of intellect, and a technical proficiency equal to that required by the highest standards of the practicing bar.
4. The candidate's physical or mental health is such that the candidate can fulfill the duties of the office with reasonable accommodations.
The specific evaluation criteria for incumbent judges are stated in the form of questions, set out in their entirety in Table III-1. These criteria are based on the American Bar Association Guidelines for Evaluation of Judicial Performance. There is no mention in the regulations about how to apply the criteria.
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Table III-1. Evaluation Criteria for Incumbent Judges |
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1. Has the judge avoided impropriety and the appearance of impropriety? |
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2. Has the judge remained free from personal bias? |
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3. Does the judge have the ability to decide issues based on the law and the facts without regard for the identity of the parties or counsel, the popularity of the decision, and without concern for or fear of criticism? |
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4. Do the actions and decisions of the judge demonstrate his or her impartiality? |
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5. Does the judge exhibit appropriate "judicial temperament"? |
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6. Has the judge issued legally sound decisions? |
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7. Is the judge knowledgeable of the substantive, procedural, and evidentiary law of Connecticut? |
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8. Does the judge demonstrate an understanding and knowledge of the factual and legal issues before the court? |
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9. Does the judge properly apply judicial precedents and other appropriate sources of authority? |
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10. Are the bench rulings and other oral communications by the judge reasonably clear and coherent? |
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11. Does the judge have the ability in written opinions to explain clearly and logically the facts and issues of a case and the relevant legal precedents? |
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12. Is the judge sensitive to the impact his or her demeanor and other nonverbal communications may have on all parties and participants, jurors, and the public? |
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13. Is the judge attentive to and prepared for proceedings before the court? |
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14. Does the judge exercise adequate control over proceedings before him or her? |
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15. Does the judge show courtesy to all parties and participants |
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1. Does the judge show a willingness to permit every person legally interested in a proceeding to be heard, unless otherwise precluded by law or rules of court? |
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17. Does the judge devote appropriate time to all pending matters? |
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18. Does the judge discharge administrative responsibilities diligently? |
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19. Does the judge exercise appropriate responsibility for matters on calendars under his or her control? |
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20. Does the judge promptly handle pending matters? |
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21. Is the judge punctual in meeting time commitments? |
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22. Are time commitments met in accordance with the law and rules of court? |
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23. Does the judge attend and participate in judicial and continuing legal education? |
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24. Does the judge, consistent with the highest principles of the law, ensure that the court is serving the public to the best of its ability and in such a manner as to instill public confidence in the court system? |
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25. Is the judge effective and cooperative in working with other judges? |
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26. When part of a multi-judge panel, is the judge effective in exchanging ideas and opinions with other judges during the decision making process? |
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27. Does the judge appropriately and with good authority critique the work of colleagues? |
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28. Does the judge facilitate the performance of administrative responsibilities of other judges? |
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29. Does the judge adhere to the canons of the Code of Judicial Conduct? |
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30. Does the judge accept responsibility for a fair share of the judicial workload? |
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31. Is the judge productive? |
Finally, regulations identify certain factors that may be considered as reasons for not recommending nomination. The commission is to "weight as appropriate and in light of the circumstances":
New candidates. New candidates may submit their applications at any time to the commission. The process for new candidates is similar to that for incumbent judges, except there is no formal hearing provision. The application for new candidates is different than the one for incumbent judges; obviously, there is no record based on the past eight years on the bench to consider. It asks for general personal, education, and criminal background information. It inquires about any grievance or disciplinary involvement. Health, current employment, and employment history information is sought, as well as litigation and non-litigation legal experience. There are a series of questions about business involvements and finances, and participation in civic, professional, and other associations.
In terms of references, an applicant is asked to give the names of six lawyers with whom the candidate has dealt most frequently in the last six years, as well as six lawyers and/or judges who know the candidate and his/her work, and can be interviewed about the candidate's legal qualifications as a judge. (The candidates are informed that the commission will contact those people directly, and a non-response is considered an unfavorable response.)
Further, the candidates are asked to state what they feel are their strongest qualifications for judicial office and what life experiences would be helpful to them if appointed as judges. Finally, each candidate must submit a copy of his/her latest IRS tax return, latest resume and the most recent Martindale and Hubbell Law Directory rating.2
After reviewing the application and interviewing persons with relevant information, the commission will interview the candidate. After the interview, the commission makes its determination and informs the candidate whether or not his/her name will be placed on the recommendation list. Once a new candidate is put on the recommended list, he/she remains on the list.
Criteria. First, new candidates must meet the same minimum qualifications as incumbent judges, listed earlier. The evaluation criteria specific to new candidates is also in the form of questions in regulation, set out in their entirety in Table III-2.
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Table III-2. Evaluation Criteria For New Candidates |
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1.Does the candidate possess the statutory qualifications for office? |
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2.Does the candidate possess the regulatory qualifications for office? |
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3. Does the prospect possess legal ability that is exemplified by professional excellence, a degree of intellect and a technical proficiency equal to that required by the highest standards of the practicing bar? |
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4. Is the candidate generally intelligent and knowledgeable? |
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5. Is the candidate capable of making up his or her mind and rendering decisions? |
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6. Is the candidate prompt in the performance of duties and obligations? |
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7. Would the candidate be an impartial judge rather than an advocate? |
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8. Could the candidate act without being duly affected by criticism, partisan demands, public clamor or considerations of personal popularity or notoriety? |
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9. Does the candidate possess the qualities of honesty and integrity? |
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10. Could the candidate, as a judge, be fair, impartial, and free from prejudice? |
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11. Is the candidate courteous and considerate? |
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12. Is the candidate patient, attentive and temperate? |
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13. Would the candidate respect the confidence inherent in the office of a judge? |
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14. Is the candidate free of tendencies which would indicate the possibility of abuse of the power or prestige of office? |
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15. Is the candidate free from activities or relationships which might tend to interfere with the candidate's performance as a judge? |
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16. Would the candidate conscientiously perform the duties of a judge? |
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17. Is the candidate industrious and well organized? |
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18. Is the candidate courageous? |
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19. Can the candidate live and carry out family obligations on the judicial salary? If not, what are or would be other sources of income? |
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20. Given that the essential functions of being a judge are the ability to preside over a court, to analyze cases, and to render decisions based on the law and facts, can the candidate perform these essential functions with or without reasonable accommodation? |
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21. Does the candidate have the ability to express himself or herself clearly and to write clear and concise opinions? |
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22. Is the candidate's personal conduct compatible with judicial dignity? |
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23. Could the candidate conduct judicial proceedings with appropriate dignity and decorum and within the canons of the Code of Judicial Conduct? |
Activities. Table III-3 summarizes the commission's work from 1990 through 1999. The table is divided into thirds. The top section shows information about new candidates. As the table indicates, over 10 years, the commission recommended on average less than half of all the applicants.
The middle section shows information about incumbent judges seeking reappointment to the same court. Here, these numbers show that since 1990, the commission has recommended all incumbent judges who sought reappointment. (A judge interviewed for reappointment in 1994 resigned). In the entire 13 years the commission has operated, only one judge who sought reappointment to the same court was not recommended by the selection commission (in 1989.)
The final section deals with incumbent judges seeking appointments at different courts (e.g., the Appellate or Supreme Courts). The table shows not all judges seeking elevation are recommended by the commission.
Governor
The governor's office keeps aware of upcoming term expirations and other events that trigger judicial vacancies.
Reappointments. As noted earlier, the Judicial Selection Commission begins the process of evaluating incumbent judges a year before their terms expire. The commission sends monthly letters to the governor's office informing staff about the incumbent judges who have been recommended. According to the governor's office, it receives word about most incumbent judges in September and October, although some recommendations can come in later. The recommendation letters are the only document the governor's office receives about incumbent judges from the selection commission.
An incumbent judge recommended by the commission must fill out the same background information questionnaire all potential gubernatorial nominees fill out. State police do a background check on the potential renominees. This check includes a review of motor vehicle, credit, tax, education, marriage, divorce, and criminal records. Any information from the Judicial Review Council will also be studied. The background check takes about a month.
The governor's office will send letters to the legislature officially renominating incumbent judges for another term in the first few days of the legislative session in which the incumbent judges' terms expire.
New candidates. When the governor's office knows of vacant judgeships to be filled (e.g., because of retirement, other change in status, or death), it will request the list of recommended new candidates from the commission. The governor's legal staff will develop a short list of persons from the recommended list and begin interviewing them. The commission will send packets on these candidates to the governor's office including the completed application and any letters of recommendation. These persons also fill out the standard background information questionnaire, which the state police use to conduct a background investigation.
The background check is the same as for judges up for reappointment, except the state police interview the prospective candidate. Any information from the statewide bar grievance committee and/or state ethics commission will also be reviewed.
Not everyone on the short list makes the final cut. According to current Governor John Rowland's staff, the governor's office confers with legislative leaders about likely nominees, to avoid any controversy. The governor himself calls the people he would like to nominate.
Criteria. There are no statutory or regulatory criteria for the governor to use in making his nominations.
Activities. Governor Rowland, since his term began in 1995, has nominated every incumbent judge recommended for reappointment except for one. In 1996, a judge eligible for another term to begin in March 1996 was the subject of a Judicial Review Council complaint filed in October 1995 alleging sexual harassment of a court employee. Governor Rowland did not renominate him for consideration during the 1996 legislative session. While not substantiating the sexual harassment charge, the JRC censured the judge for misconduct in 1996, which was upheld by the Connecticut Supreme Court in March 1997.
Legislature
By statute, any judicial nomination by the governor is referred directly to the Judiciary Committee. If the General Assembly is in session, the Judiciary Committee is required to report on the nomination "within 30 days from the time of reference, but no later than 7 days before adjournment." As noted above, the Judiciary Committee does not get any official nomination letter until the first days of the legislative session. This can create real pressure in dealing with the reappointment of incumbent judges, because traditionally the understanding is the legislature must act on the reappointment prior to the expiration of the term. (This is not an issue for new candidates.)
As soon as the judiciary committee receives the nomination letter from the governor, the committee clerk sends the nominee a questionnaire prepared by the judiciary committee.3 There is one questionnaire for both incumbent judges and new candidates, with certain questions applicable to only one or the other.4 Both are asked personal background information, including age, marital status, and family members, and educational and employment experience. They are asked to list any legal books or articles published.
Incumbent judges are asked to report any complaints filed against them with the Judicial Review Council, and how they were resolved. Incumbent judges are also asked to submit five memoranda of decisions they have written. New candidates are asked for five memoranda of law. For incumbent judges, the judicial branch also provides the applicable judicial evaluations.
Investigations. Since 1985, the judiciary committee has had authority to hire investigators. Currently, the investigators (two attorneys - one appointed by each of the chairs) review motor vehicle records and state and municipal tax records, and obtain any statewide grievance or judicial review council material as applicable. Because of the short time frames, the committee usually gets the reports the day before the public hearing. The reports are given to the committee chairs.
Currently, each committee member receives a copy of the completed questionnaire for each judge or new candidate prior to the hearing. The judicial evaluations are available to the members in the Judiciary Committee files. Any correspondence related to a judge or new candidate's nomination is also available to members in the committee files.
Public hearings. Typically, the Judiciary Committee will hold two or three hearings per session for judicial nominees, depending on the number of judges and new candidates up for nomination. At the hearings, the nominees are sworn in, usually invited to make an opening statement of some kind, and then respond to questions by committee members. (Incumbent judges are often asked to identify their court assignments for the past eight years.) The nature and length of the questioning can vary by many factors. At some hearings in past years, every nominee was asked a series of questions similar to those the nominee had answered on the questionnaires. (e.g., have you ever to your knowledge been under state, federal or local investigation for possible violation of either civil or criminal statute?)
In some years, nominees have been asked whether they belong to any clubs that might not be open to everyone. Sometimes nominees who are incumbent judges are asked about their reversal rates. Some judges are asked about individual decisions with which they were involved, often to explain the bases for the decisions. New candidates who have a lot of civil legal experience are often asked if they feel they will be able to handle the criminal courts; nominees with criminal practice backgrounds are asked the same about adjudicating civil matters. Finally, often incumbent judges are asked for their opinions on how the judicial system could be better assisted by the legislature.
Sometimes members of the public testify about the nominees, typically about a particular interaction the person may have had with the incumbent judge or new candidate.
Action. Usually, the Judiciary Committee will hold a committee meeting immediately following a public hearing and vote on judicial nominations. When the committee votes on a nomination, it gets assigned a resolution number for referral to the full legislature. Each chamber must approve the resolution. As mentioned earlier, action on incumbent judges seeking reappointment has to be completed before their terms expire.
Criteria. There are no statutory or regulatory criteria for the Judiciary Committee or the whole legislature to use to appoint or reappoint judges.
Activities
Table III-4 shows the nominations approved by the legislature, broken down by type, over the last nine legislative sessions (eight years). In the last eight years, 114 incumbent judges were reappointed to the Superior Court, while 82 persons were appointed as judges for the first time. The table shows the mix of the type and number of nominations the legislature has in front of it in any given year. For example, during the 1997 session, the legislature considered and approved 14 new candidates for judgeships, and eight incumbent judges. The following year, the legislature had 22 incumbent judges to consider for reappointment, along with 13 new candidates.
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Table III-4. Legislative Judicial Appointments By Session |
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Type |
93 |
94 |
94SS* |
95 |
96 |
97 |
98 |
99 |
00 |
Ttl |
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1st Appt. to Superior Court |
11 |
6 |
15 |
0 |
11 |
14 |
13 |
0 |
12 |
82 |
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Reappt. To Superior Court |
6 |
28 |
0 |
14 |
17 |
8 |
22 |
10 |
9 |
114 |
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1st Appt. to Appellate Court |
1 |
1 |
1 |
0 |
0 |
0 |
1 |
15 |
3 |
22 |
|
Reappt. To Appellate Court |
1 |
0 |
0 |
0 |
2 |
0 |
2 |
0 |
0 |
5 |
|
1st Appt. to Supreme Court |
4 |
0 |
0 |
0 |
1 |
0 |
0 |
0 |
2 |
7 |
|
Reappt. To Supreme Court |
1 |
0 |
0 |
0 |
0 |
0 |
1 |
0 |
0 |
2 |
|
Appt. to Chief Justice |
1 |
0 |
0 |
0 |
1 |
0 |
0 |
0 |
1 |
3 |
|
Appt. as Senior Judge |
0 |
5 |
0 |
1 |
2 |
1 |
0 |
0 |
0 |
9 |
|
Appt. as State Referee |
2 |
19 |
0 |
2 |
7 |
6 |
1 |
6 |
6 |
49 |
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Total |
27 |
59 |
16 |
17 |
41 |
29 |
40 |
31 |
19 |
293 |
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*1994 Special Session |
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Since 1987, the legislature has not denied reappointment to an incumbent judge, nor has it turned down the nomination of a person to be a judge for the first time. In that time period, three judges nominated for reappointment have withdrawn their names from legislative consideration at three different stages of the legislative process.
Judicial Review Council. The Judicial Review Council is the 12-member panel charged with handling misconduct complaints about judges. Established in 1977, it is frequently confused with the Judicial Selection Commission. They are two different entities, performing two different functions. There is an overlap though, requiring the review council to play a role in the selection process for incumbent judges. The review council is required to submit to the Judicial Selection Commission, the governor's office, and the Judiciary Committee: 1) its recommendation about a judge seeking a different court or reappointment to the same court; and 2) reports about any complaint filed against a judge up for reappointment, the disposition of the complaint, and any investigation done by the council (the statutory grounds for action against a judge by the JRC may be found in Appendix E.)
Regarding the recommendation, if the review council has reason to believe a judge is guilty of judicial misconduct due to material neglect of duty or incompetence in the conduct of his office, it may refuse to recommend such judge for nomination to a different court or for reappointment. The review council shall not recommend a judge for nomination if the council finds such judge has willfully violated the prohibition against financial gain or has been convicted of a felony or of a misdemeanor involving moral turpitude.5
1 There are different application forms for appellate and supreme court candidates. Copies of the JSC application forms may be found in Appendix C.
2 The Martindale and Hubbell Law Directory is published by a private company. The directory, among other things, rates lawyers based on confidential opinions of lawyers and judges. Not all lawyers are rated.
3 Although the Judicial Selection Commission release form signed by persons going through that process includes release of the commission application to the Judiciary Committee, that never seems to have happened.
4 There is a different questionnaire for Appellate and Supreme Court candidates. The Judiciary Committee questionnaires may be found in Appendix D.
5 In recent years, the council and others have attempted to remove the recommendation requirement from its statute. The argument is that the JRC's role does not provide it with the basis upon which to make reappointment recommendations.