With the new clout they acquired in the November election, Republicans at the state capital have taken aim at what they call judicial activism and incivility and, in a highly unusual move, held up the re-appointment of one of the state's best-known and longest-tenured jurists.
The target is Richard N. Palmer, senior associate justice of the state Supreme Court. He has joined - and in many cases written the volatile opinions for narrow court majorities that, among other things, abolished the death penalty, legalized gay marriage and permitted government to use eminent domain to seize private property for commercial development.
Republicans on the joint Judiciary Committee departed last week from the custom of routine reconfirmation of long-sitting judges and grilled Palmer for four hours. His legal conclusions on red meat, conservative issues made him an easy target. But there were times when he looked like a whipping boy for dissatisfaction with the broader court - for its claimed over-reaching and for acerbic sniping among justices that some fear threatens the court's collegiality.
With Republicans and Democrats now evenly matched with 18 members each in the Senate, the Republicans used their new muscle to delay a vote on Palmer. Several observers predicted he will face further Republican opposition, but will be returned to the court before his third, 8-year term expires on March 17. A vote could take place Friday.
"I think there are a lot of my caucus members who are not happy with Justice Palmer," Republican Senate leader Len Fasano, R-North Haven, said. "We are talking about a justice of the Supreme Court and I think that a lot of our members had a lot of questions and issues. So I think that the people on the committee wanted a little more time to vet through the information and see where they stood. And there is no real time pressure boiling."
If nothing else, the back and forth between legislators and Palmer was revealing. It demonstrated Republican disagreement with the court on big issues. And it gave a senior jurist an opportunity to defend those decisions to the public.
Palmer was pressed repeatedly about so-called judicial activism, in particular whether he substituted his judgment for that of the legislature when, in a 4-3 opinion he wrote, the court declared the legislature's most recent iteration of the death penalty unconstitutional. The 2015 case is known as Santiago.
The death statute at issue in Santiago was written by the legislature to replace an earlier law that withstood constitutional review. The Santiago law was written to be "prospective," meaning it banned executions in crimes committed after the effective date of the law. Sentences imposed on those previously convicted were to remain in effect.
Legal experts, including the state's chief prosecutor, warned the legislature that the bifurcated, or prospective nature of the Santiago law made it unconstitutional because it treated people charged with the same crime differently. In that sense, Palmer's majority opinion was predictable.
But Palmer and the majority went farther. He wrote that "in light of the governing constitutional principles and Connecticut's unique historical and legal landscape, we are persuaded that, following its prospective abolition, this state's death penalty no longer comports with contemporary standards of decency and no longer serves any legitimate penological purpose."
Some death penalty proponents feared the decision abolished capital punishment in Connecticut forever. Palmer told the committee he believes it did not.
Committee Republicans lectured Palmer that elected legislators are in closer to voters than judges and in better positions to measure "contemporary standards of decency." One lawmaker asked whether the Supreme Court commissioned a poll to chart shifting standards of decency. They accused Palmer of usurping their authority by substituting his judgment for theirs.
Palmer was relaxed and looked comfortable with the pointed questions that implied criticism of his judicial philosophy. He said he recognizes that "the legislature, along with the executive, is the policy-making branch of our government" and that his views on capital punishment had no bearing on the Santiago decision.
"I did not think it was the prerogative of the court to substitute our judgment for that of the legislature," he said
Since his appointment to the court by Gov. Lowell P. Weicker Jr. in 1993, Palmer said he has twice voted with court majorities to uphold the constitutionality of state death penalty statutes. He was the swing vote in the 4-3 majority opinion upholding execution in the court's 1996 Webb decision. He voted with the majority again in upholding the death penalty in the 2014 Rizzo decision.
"What changed between Rizzo and Santiago?" asked Sen. Michael A. McLachlan, a Danbury Republican
"The statute changed," said Palmer, who was at various times before joining the court Connecticut's chief federal and state prosecutor. "I have not changed by mind on the death penalty. It was only with the passage of a bifurcated statute that I ultimately concluded it was unconstitutional."
He said it was Santiago who, in his appeal, raised the issue of shifting standards of decency - not the court. Palmer told the committee that the state strengthened Santiago's evolving standards argument by carrying out only two executions in more than 60 years. And he said the legislature added more weight by trying to ban future executions.
The loudest complaints from Republican committee members were directed at what they characterized as a disturbing decline in collegiality among the court's justices. In some cases, the critics claimed, justices are not longer speaking to one another.
It was implied in some of the questions that sharp language used to dismiss dissenters in Palmer's majority opinions is responsible for ill will on the court. In subsequent interviews, Fasano and other Republicans said Palmer isn't the only judge with a sharp pen, but is on the firing line because his term is up.
McLachlan referred to a now infamous footnote in a 4-2 majority opinion by Palmer in 2015 that affirmed the reversal of a murder conviction against Richard LaPointe, a mentally handicapped man who a lower court said had been wrongly imprisoned for most of his life.
The footnote was sharply critical of Justice Carmen E. Espinosa, who, in the same case, blasted Palmer and the majority in a dissent.
Palmer's footnote said, in part: "Rather than support her opinion with legal analysis and authority, however, she chooses, for reasons we cannot fathom, to dress her argument in language so derisive that it is unbefitting an opinion of this state's highest court. Perhaps worse, her interest lies only in launching groundless ad hominem attacks and in claiming to be able to divine the (allegedly improper) personal motivations of the majority."
The footnote concluded by saying Espinosa "dishonors this court."
Espinosa had signed one LaPointe dissent with former Justice Peter Zarella that analyzed the law. She wrote a second by herself that attacked the motives of the majority, accusing it of operating outside the bounds of judicial propriety. She said the majority was guilty of "unfettered judicial activism" and "a complete misunderstanding of the proper role that this court should play within the rule of law."
"And justice is most certainly not attained by doffing one's judicial robe and donning an advocate's suit" Espinosa wrote.
McLachlan told Palmer, "You threw a grenade. Why did you do that?"
"We just felt the dissent in LaPointe was unfair and really accused us of engaging in conduct that is improper for judges," Palmer said.
Palmer said the footnote was meant to defend the court from what the majority believed to be a scurrilous attack. But he said sharp language is something of a tradition in appellate decisions and is far more pronounced at the U.S. Supreme Court, where justices who attack one another in writing have been close friends.
Palmer denied that there is hostility among Connecticut justices. He said he circulates his opinions among colleagues prior to publication with a standing offer to remove offensive language. Although he did not say so explicitly, his answer implies that the language in Espinosa's dissent and the responsive footnote were agreed upon in advance.
Sen. John A. Kissel, an Enfield Republican, complained that the sniping erodes public confidence in the court.
"I have heard on good authority from very good sources that it is a chilly atmosphere across the street, that people don't talk to one another," Kissel said, referring to Supreme Court chambers across Capitol Avenue from the Legislature.
"Knock it off," Kissel told Palmer. "Two wrongs don't make a right. If someone slaps you on the face, turn. Give them the other cheek. Gandhi. Kill them with kindness."
Palmer said he would carry the message across the street to his colleagues.
View post:
With New Clout At State Capitol, Republicans Hold Up Re-Appointment Of Supreme Court Justice - Hartford Courant