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April 9, 2024

Shift in CT judicial nomination process highlighted by withdrawals

MARK PAZNIOKAS / CTMIRROR.ORG Rep. Robyn Porter and Rep. Craig Fishbein talk after urging colleagues to reject the nomination of Devant J. Joiner.

For years, observers of Connecticut’s judicial nomination process were dismayed with lawmakers, whom they felt treated the proceedings as an afterthought. They argued that judge nominees would rarely face difficult questioning from legislators in charge of either approving or rejecting their candidacy. And they believed the governor’s appointees too often received the benefit of the doubt. 

Until more recently. 

During the 2024 legislative session, two of Gov. Ned Lamont’s appointments to the state Superior Court bench have withdrawn their nominations due to concerns about their recent past: Assistant State’s Attorney Devant J. Joiner over claims that he was overly harsh in his dealings with defendants; and Judge Michael E. Shay over reservations about an admonishment he received from the council overseeing judicial conduct last year. 

And with the legislature having recently approved Lamont’s most recent class of judicial appointments, court reform advocates see the withdrawals as a welcome change from what they call the “rubber stamping” of nominees, who they feel rarely undergo scrutiny for consequential decisions they make in their careers.

“The Judiciary Committee has an important role in actually vetting these candidates,” said Steve Kennedy, who leads the People’s Parity Project at UConn Law, an organization calling for more professional diversity on the bench, referencing the legislative committee overseeing nominations. “To just pass that off to the governor and say, ‘Well, you know, it’s his choice. What else can we do but vote yes?’ is really just a big cop out.” 

Some lawmakers say they understand the frustration about the nomination process, noting that it is handled in a way to ensure a candidate’s career and reputation are not unfairly jeopardized. But they push back on accusations about rubber stamping, arguing that they invest significant effort into confirmation hearings that the public is not always privy to. 

“You can’t say, ‘You don’t get to get on the bench’ because somebody just doesn’t like you. That’s just not how this works,” said Sen. Gary Winfield, D-New Haven, a co-chair of the Judiciary Committee. “But when there’s something there, we try to follow through.”

Prospective judges are screened by a 12-member board of lawyers and non-lawyers known as the Judicial Selection Commission, a group charged with collecting background information on applicants, interviewing candidates and sending recommendations to the governor for appointment or reappointment. 

The governor’s nominee then appears before the Judiciary Committee, and the committee conducts its own investigations, holds public hearings and votes on whether to send the individual to the full legislative body for official confirmation. 

“We hire investigators to look into whether folks have paid their taxes, whether they have outstanding criminal charges, whether there are outstanding grievances or Judicial Review Council proceedings,” said Rep. Steven Stafstrom, a Bridgeport Democrat and co-chair of the Judiciary Committee, referencing the council that oversees judicial conduct. 

If approved by the full legislature, Connecticut judges go on to serve eight-year terms before they face reappointment. Barring concerns about conduct or temperament, they are typically reappointed, which grants them significant power over people’s lives through sentencing and their interpretation of laws and legal precedent. 

The series of events leading up to Joiner’s and Shay’s withdrawals highlight the process at its best, advocates say. But legislators believe it shows the extent of the preparation by the committee in ways not always visible to the public.

“Nobody gets a rubber stamp from me,” said Rep. Craig Fishbein, R-Wallingford, a top Republican on the Judiciary Committee. “I try and research everyone and try to ask the right questions.”

In a hearing before lawmakers last month, Joiner exhibited a sense of humor while also recounting his difficult upbringing in New Haven. He talked about growing up without his father, being raised by a teenage single mother who struggled with drug addiction, and experiencing homelessness after high school.

But his story wasn’t enough to score a favorable vote out of the committee or from Fishbein, who quizzed the 54-year-old about recent accusations of “prosecutorial vindictiveness,” a term describing prosecutors who pursue charges against defendants as an act of retaliation. 

Concerns about Joiner stemmed from a case involving two people: one who accepted a plea deal and another who received harsher charges after stating an intention to go to trial. At least one other legislator, Rep. Robyn Porter, D-New Haven, where Joiner has prosecuted cases, said she had also observed and received complaints about his treatment of people in court. 

Committee members voted 27-10 to recommend against Joiner’s confirmation by the full General Assembly, raising a hurdle rarely, if ever, cleared by nominees to the bench in Connecticut. His withdrawal followed shortly after. 

Shay, meanwhile, sought another eight-year term as a state referee, a position for retired judges assigned cases by the court on a part-time basis. During his confirmation hearing, the veteran judge struggled to answer questions from lawmakers about an admonishment, or conduct warning, he received last year from the Judicial Review Council for scolding a family for not following a court order that he had not in fact ordered. 

He also tripped up on questions about a 2014 Connecticut Supreme Court decision in which justices expressed sharp disapproval of his decision to use an earlier case’s minority opinion as the basis for a ruling he issued at the trial level. 

Noticing the uphill battle that Shay was facing at the hearing, the Judiciary Committee leadership contacted Lamont’s office to give the administration an opportunity to chart its next steps with the nominee. 

“Generally, they’re not going to want us to vote down one of these people,” Winfield said. “And then at that point, if they’re going to resolve it, there are two choices: there’s always the choice of pulling the nominee, which generally isn’t what happens, or explain to the nominee that they can pull themself.”

Unlike the Joiner situation, the committee did not hold a vote for Shay. After the hearing, Shay sent a letter to Lamont, formally requesting that he withdraw his nomination. 

State referees are not subject to review by the Judicial Selection Commission, and the governor’s office said it was not previously aware of Shay’s admonishment due to a state law that places strict limits on who receives the information. “There is no statutory requirement to inform the governor,” said David Bednarz, a spokesperson for Lamont. 

The office declined to comment further on the judicial nomination process. Neither Joiner nor Shay responded to email requests for comment. 

While not every lawmaker was opposed to renominating Joiner and Shay, some have observed nominees undergoing more scrutiny over the last couple of years. And organizations like the People’s Parity Project believe they have played a significant role in bringing more attention to the process.

Sandra Slack Glover, Lamont’s recommendation for a vacancy on the Connecticut Supreme Court, pulled her nomination last year after she was unable to overcome questions about a previous endorsement of Amy Coney Barrett, one of the six U.S. Supreme Court justices who voted to overturn the constitutional right to an abortion. 

Before Glover’s withdrawal, some lawmakers voiced reservations about her inexperience in state court. The governor had also recommended the career federal prosecutor to the bench when advocates were urging the state to look beyond prosecutors and corporate lawyers. 

But advocates say the Joiner, Shay and Glover situations haven’t always been the norm.

Judicial nominations previously seemed to be “a complete afterthought,” said Kennedy, with the exception of well-publicized instances when the Senate was divided and Dannel P. Malloy was unpopular as governor. That was the case during proceedings for now-retired Supreme Court Justice Richard N. Palmer, whose authorship of decisions that struck down the last vestiges of capital punishment and legalized same-sex marriage nearly cost him his confirmation.

Aside from such instances, “it’s like once the governor has made his choice, that’s probably going to be the person that it is,” Kennedy said, adding that it “seems like less of the case lately.”

Advocates and legislators would still like to see more professional diversity on the bench, particularly people with experience in public defense and civil rights law. They also say there’s a need for more rigor and transparency in the judicial nomination process, starting with the Judicial Selection Commission. 

“The way this tends to work is that it’s all just kind of a black box,” said Kennedy, comparing Connecticut to New York, which seeks to involve the public at various points during its nomination process. 

There are also concerns from Republican lawmakers about the makeup of the commission. Of the dozen members, six are required to be lawyers, while the other six are required to be non-lawyers.

But the functions of the commission could change in the near future. The legislature is considering a proposal that would require the commission to provide statistics on the professional experience of candidates. 

It would require that when the commission denies a recommendation to a candidate or judge, it include a summary of the “specific facts” established during the evaluation and a record of the numerical vote.

And the bill would reduce the membership of the commission to 11 members, nine of whom would be attorneys with at least 10 years of active experience in state court and two of whom would not be.

“I think we need more trial attorneys in judicial selection, examining the judges and measuring their temperament issues, and looking into their temperament issues,” said Rep. Tom O’Dea, R-New Canaan, a civil trial attorney and former chair of the Judicial Selection Commission who serves on the Judiciary Committee. 

“I don’t know how one could perceive a system where individuals are selecting persons to go on the bench if they haven’t been in a courtroom,” added Fishbein, who practices family and civil rights law.

Leander Dolphin, chair of the JSC and managing partner of Shipman and Goodwin LLP in Stamford, recently testified that the commission is in favor of implementing additional reporting requirements related to professional experience.

However, she also expressed reservations about the idea of disclosing a summary of evaluation findings and the numerical vote of the commission to candidates, as she believes it could potentially change a confidential evaluation process into an adversarial one. She also said the commission sees its current diversity of experience as a strength.

“The resulting lack of variety and breadth of experience would deprive the Commission of diversity that assists in the evaluation of candidates,” Dolphin said. “Having a well-balanced Commission imbues trust that the judiciary itself is open to all, not just to trial lawyers.”

Once a candidate gets past the commission and the governor, it’s up to the Judiciary Committee to take a nominee’s background and experience seriously.

Winfield said he understands why the public might believe that doesn’t always happen. 

“If I’m looking at that system from the outside, all I ever see is everybody that’s on there, they vote for,” he said. “They don’t realize names come off. So I think we have to do a better job, and I don’t think people want to say that we’re pulling names off. Because then the whole protective factor of doing it in a way that we do it goes away. So you put yourself in a position where, by choosing not to say that you’ve actually stopped people, it looks like you just rubber stamp everybody.”

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