A controversy over diversity sheds light on how judges are chosen

The path to becoming a Superior Court judge eventually involves a public examination and vote by the legislature, but it begins in private at the New Haven Lawn Club.

Once every month, the Judicial Selection Commission meets at the club to interview would-be judges, then votes up or down on their prospects.

Without exception, as legislators were reminded Tuesday during their debate over nine white nominees, Gov. M. Jodi Rell can only nominate those cleared by the commission.

“Gov. Rell feels strongly that more diversity is needed on Connecticut’s bench – and, frankly, throughout state government. The governor, however, may only nominate judges from a list of pre-approved candidates,” said Rich Harris, a spokesman for Rell.

The legislature’s Judiciary Committee recommended the confirmation of all nine lawyers, whose nominations had been held up by the Black and Puerto Rican Caucus. The nominations now will be considered by the House and Senate, where their fate could be linked to ongoing budget negotiations.

A promise by Rell to nominate a minority candidate in coming months ended a delaying action began earlier Monday by the caucus.

The dispute over judicial diversity drew back the curtain, if just a bit, on the process of how judges are chosen in Connecticut.

But there was no precise answer to one question: How many black and Latino lawyers did Rell overlook to nominate an all-white class of 10 lawyers, including one who withdrew last week, to the Superior Court?

It is a matter of public record that 38 lawyers interviewed last year as potential judges, and that 24 were rejected by the commission. Of the 38 who were interviewed, seven were black and four were Latino. But the commission does not report demographic information on those approved.

“I’ve been told there is in the vicinity of five to 10 minorities on the list,” said Rep. Michael P. Lawlor, D-East Haven, co-chairman of the Judiciary Committee.

His information is unofficial. Only the governor’s office is provided with the list by the Judicial Selection Commission, a panel created in 1986 to demystify and de-politicize the selection of judges.

Howard Rifkin, who was Gov. William A. O’Neill’s last legal counsel, said the newer process has its own politics.

“I always argued that the Judicial Selection Commission made the process less transparent and more political. It was politics once removed,” he said.

Hugh Keefe, a prominent defense lawyer who has served three different stints on the commission, said it was far preferable to its  predecessor: a panel of the Connecticut Bar Association that had informal veto power over judicial nominees.

“The commission has gone out of its way to actively encourage minority candidates to apply,” Keefe said.

The 12-member panel has six lawyers and six non-lawyers, appointed by the governor and legislative leaders. Its membership includes Robert F. Frankel and Rick Melita, close aides to House Majority Leader Denise Merrill, D-Mansfield, and House Speaker Christopher G. Donovan, D-Meriden.

One of Rell’s appointees is Kathleen P. O’Connor, a prominent lawyer who is married to former U.S. Attorney Kevin O’Connor.

William R. Dyson, a former legislator who repeatedly made racial diversity an issue in the legislature, has been a commission member since February 2008. He said, “The process is not all that clear.”

The commission relies on a questionnaire the candidates fill out, an interview and whatever other information members gather on their own. They commission has no investigative staff.

Peter Smith, a lobbyist and former legislator whose term on the commission recently ended, said debates over potential nominees often were heated. The commissioners, who also have to review the reappointments of existing judges, interview and vote on a half-dozen appointments in a single day every month.

“It’s a grueling day,” he said.

Lawlor and his co-chairman, Sen. Andrew McDonald, D-Stamford, said they will seek approval of legislation opening the process a little wider.

The names approved by Judicial Selection would remain confidential, but demographic information about race and gender would become public.

Rell’s office only would say Tuesday that 4 percent of the available candidates are minorities, but it declined to be more specific. If there are 200 candidates on the list, as Lawlor suspects, then Rell had eight minorities candidates from which to choose.

About 15 percent of Rell’s previous judicial nominees are minorities, and Rell is committed to diversity, Harris said.

“For that reason, the governor is committed to appointing a qualified, approved minority candidate to the bench in the coming months, following a thorough and rigorous recruiting and vetting process,” he said.

“I take the governor at her word,” said Rep. Gary Holder-Winfield, D-New Haven, a member of the caucus. “The issue is not going to go away.”

Rell is not solely responsible for the nine nominees, who include her budget chief, Robert L. Genuario of Norwalk, and her commissioner of public safety, John A. Danaher III of West Hartford. By tradition, she shares the appointment power with legislative leaders.

“It’s a courtesy, but it helps moves things along,” Donovan said.

Donovan and Senate President Pro Tempore Donald E. Williams Jr., D-Brooklyn, each named two nominees. One of two candidates chosen by Donovan in a previous round of nominees was a minority.

Rell’s other three picks were Laura Flynn Baldini of West Hartford, John L. Carbonneau of East Lyme and Susan A. Connors of Old Lyme. The Democrats chose Susan Q. Cobb of West Hartford, Jane B. Emons  of Woodbridge, Kathleen McNamara of East Hartford and David M. Sheridan of Manchester.

Rep. Arthur J. O’Neill, R-Southbury, the ranking Republican on the Judiciary Committee, said the state has made progress in the past decade on racial diversity.

Only limited historical data could be obtained Tuesday. From 2005 to 2009, the percentage of minority judges rose from 12.5 percent to 14 percent. A report compiled last year by the Judicial Department lists 27 minority judges among 187 judges of the Superior, Appellate and Supreme Courts.

There were 20 black, five Latino and two Asian or Pacific-Islander judges last year. In 2003, there were 19 black and five Latino judges.

A national survey shows Connecticut with more minority judges than any state in New England.

Most members of the Black and Puerto Rican Caucus said they were pleased by Rell’s reaction, but one member, Sen. Eric Coleman, D-Bloomfield, said he was saddened that it took a filibuster threat by the caucus to raise the issue, as opposed to a stand by the entire Judiciary Committee.

“I’m longing for the day when the issue of diversity is as important in reality as it is in theory,” Coleman said.