Digest
Judicial Selection
INTRODUCTION
FINDINGS
¬ Connecticut's judicial selection process, in which the Judicial Selection Commission recommends, the governor nominates, and the legislature appoints judges, is unique and differs from the 38 states using popular elections in some manner for judges.
¬ The study was prompted in part by the nomination of an incumbent judge for reappointment during the 2000 legislative session, which was the source of considerable controversy.
¬ Concern was raised about whether legislators were overly focusing on one case and substituting their judgment for that of the judge, to the detriment of judicial independence.
¬ It is always appropriate to question and even criticize decisions made by judges. Being criticized comes with being a judge; the appeals process itself is a type of criticism. It is to everyone's benefit when questioned decisions are explained. The judiciary, indeed no part of government, should be seen as beyond explanation. The problem is when statements go beyond criticism and become threats to not reappoint judges who have only done their jobs.
LEGISLATIVE STANDARDS
FINDINGS
¬ The status quo of eight-year terms for judges and a legislative versus electorate role in reappointments assumed in this study, it is clear the tension between judicial accountability and judicial independence is not going away for the Connecticut General Assembly. The goal should be to achieve the best balance between the two concepts as possible.
¬ Some components of the judicial selection process in Connecticut are currently subject to statutory and regulatory standards: the Judicial Selection Commission and the Judicial Review Council.
¬ The two components of the process that do not have any constitutional, statutory, or regulatory standards are the governor and the legislature. There is one very basic distinction between the two appointed panels and the governor and the legislature that explains the difference -- the latter two are directly accountable to the electorate.
¬ The program review committee does not easily proscribe the activity of an entity that is at its very heart political and responsive ultimately to voters. In this case, however, the activity in question directly relates to the core functions of the judicial branch of government, which operates out of a different, non-majoritarian ethic.
¬ The program review committee finds the appointment of judges is substantially different from other decisions made by the legislature - because it is the selection of public officials for the third, the judicial, branch of government, whose decisions are to be based on law and evidence, not popular opinion.
RECOMMENDATIONS
1. The committee recommends that C.G.S. Sec. 2-40(a), related to the Judiciary Committee, be amended as follows (the bolded language is the recommended change):
Each nomination made by the Governor to the General Assembly for the Chief Justice or a judge of the Supreme Court, Appellate Court or Superior Court shall be referred, without debate, to the committee on the judiciary, which shall report thereon within thirty legislative days from the time of reference, but no later than seven legislative days before the adjourning of the General Assembly. FOR NOMINATIONS OF INCUMBENT JUDGES FOR REAPPOINTMENT TO THE SAME COURT, THE COMMITTEE ON THE JUDICIARY SHALL CONSIDER THE LEGAL ABILITY, COMPETENCE, INTEGRITY, CHARACTER, AND TEMPERAMENT OF SUCH JUDGES, AND ANY OTHER RELEVANT INFORMATION CONCERNING SUCH JUDGES. THE MERE MAKING OF UNPOPULAR OR ERRONEOUS DECISIONS SHALL NOT BE A GROUND TO REJECT A NOMINEE FOR REAPPOINTMENT.
2. The same language is recommended to amend the statute addressing the House and Senate votes on judicial nominations. Thus, C.G.S. Sec. 2-42 should be amended as follows (the bolded language is the recommended change):
Each appointment of the Chief Justice or a judge of the Supreme Court, Appellate Court or Superior Court shall be by concurrent resolution. The action on the passage of each such resolution in the House and in the Senate shall be taken on the electrical roll-call device. No resolution shall contain the name of more than one nominee. FOR NOMINATIONS OF INCUMBENT JUDGES FOR REAPPOINTMENT TO THE SAME COURT, THE HOUSE AND THE SENATE SHALL EACH CONSIDER THE LEGAL ABILITY, COMPETENCE, INTEGRITY, CHARACTER, AND TEMPERAMENT OF SUCH JUDGES, AND ANY OTHER RELEVANT INFORMATION CONCERNING SUCH JUDGES. THE MERE MAKING OF UNPOPULAR OR ERRONEOUS DECISIONS SHALL NOT BE A GROUND TO REJECT A NOMINEE FOR REAPPOINTMENT.
Information Available to the Legislature
FINDINGS
¬ The committee finds there is considerable information available to the Judiciary Committee about judges.
¬ There are, however, varying degrees of awareness among Judiciary Committee members about what information is actually available to the Judiciary Committee.
¬ Concern was expressed about a perception among lawyers that their judicial evaluation survey responses really weren't confidential, and that somehow judges saw them and knew who had filled them out. This could contribute to the 40 percent non-response rate and according to some also raise questions about the candor of the returned surveys.
¬ A benefit of the judicial evaluation survey program, compared to more general lawyer surveys, is it is clear the lawyers to whom the surveys are distributed have had the contact necessary to form opinions about the judges.
¬ The program review committee finds the information available to the Judiciary Committee and the legislature about judges needs to be put in the context of judicial activity.
RECOMMENDATIONS
3. The program review committee recommends the Judicial Department use an independent entity to administer at least the lawyer survey part of the judicial evaluation program, which shall supply the Judicial Department with statistical compilations on a quarterly basis. Also, the Judicial Department, with the Judicial Performance Advisory Panel, shall continue to aggressively search for other ways to improve the judicial evaluation program, including but not limited to seeking input from other persons familiar with judicial performance such as court personnel. The Judicial Department shall report annually on January 15 to the Judiciary Committee and the Program Review and Investigations Committee about steps taken to improve the program.
4. The program review committee recommends the Judiciary Committee should at least biennually, at the beginning of each two-year legislative term, host a seminar to which all members of the Judiciary Committee, particularly new ones, and all other legislators are invited. Representatives of the Judicial Department, the Judges Association, the Judicial Selection Commission, and the Judicial Review Council shall attend and make presentations about their part in the judicial selection process and discuss common areas of misunderstanding about judicial activity.
5. The program review committee recommends the statutes be amended to allow, upon the request of the Judiciary Committee in regard to a particular case or controversy related to an incumbent judge nominated for reappointment, the Judicial Selection Commission to inform the committee whether the commission considered the case or controversy and if so, to explain why the specific case or controversy did not cause it to reject the incumbent judge for recommendation for reappointment to the same court. In so doing, the commission shall not identify any confidential sources of information.
6. The program review committee recommends the Judicial Selection Commission as part of its review process publish notices soliciting input from the public about judges in newspapers of general circulation.
Legislative Time Frame
FINDINGS
¬ Through a combination of constitutional and statutory requirements, the legislature has a relatively short time frame in which to consider judicial nominations, especially judges nominated for reappointment to the same court, who have track records to potentially consider.
¬ In most cases, judicial nominations are noncontroversial, and so the limited time does not seem to pose any problem. A review of Judiciary Committee reappointment hearings over the past nine years shows incumbent judges seeking reappointment to the same court are often asked very few questions by the committee members. However, when controversy arises about a judge, timing can be a problem.
¬ Since the time frame was established years ago, some significant changes have taken place impacting judicial selection.
RECOMMENDATION
7. The program review committee recommends the statutes be amended to require the governor to make his or her judicial renominations sooner. Specifically, the judicial appointment statute should be amended as follows:
NEW The Governor shall nominate incumbent judges for reappointment to the same court by November 10 of the year preceding the legislative session in which the judge's term expires. The judiciary committee shall hold public hearings on such nominations no later than 30 days before the expiration of each judge's term. Notice of these public hearings shall be made in newspapers of general circulation and legal journals at least 15 days before the hearings, and mailed to every legislator.