Time running out on Chatigny nomination

WASHINGTON-As the clock runs out on Congress’ lame duck session, the fate of a controversial Connecticut judicial nominee, Robert Chatigny, appears increasingly in doubt. His nomination remains in limbo even though the court he hopes to join is operating under a “judicial emergency,” with three long-pending vacanies waiting to be filled.

Chatigny, now a District Court judge in Hartford, was first nominated nine months ago for a seat on the 2nd Circuit Court of Appeals. In a blistering statement on Friday, the Senate Judiciary Committee’s top Democrat decried the legislative gridlock that has stalled 20 judicial nominees, citing Chatigny’s name among others.

But one day earlier, the committee skipped over Chatigny’s contentious nomination. The judge’s name was at the top of the panel’s agenda last Thursday, but Democrats swept by him to tackle a gamut of other legislative business.

The Senate could still confirm Chatigny when lawmakers return after this week’s Thanksgiving break. But the decision by Sen. Patrick Leahy, D-Vt., the committee’s chairman, to pass over Chatigny last week has dimmed the judge’s prospects for a promotion to the region’s court of appeals.

In the meantime, the 2nd Circuit is currently operating with three of its judicial slots empty; each has been vacant for more than 400 days. The judicial emergency designation by the Administrative Office of the U.S. Courts essentially means the court’s current roster of judges have too many cases to wade through.

Karen Greve Milton, the Circuit Executive, said the 2nd Circuit has had to ask visiting judges to help out with the caseload while they wait for the Senate to act.

“The challenge is that you’re just kind of in a holding pattern here, as are the nominees,” Milton said. She said the judges have worked under “compressed schedules” to make sure that no cases have been delayed or backlogged, but “it’s hard all around.”

President Barack Obama nominated Chatigny, who has served as a District Court judge in Hartford since 1994, for the appeals court in February. The 2nd Circuit hears appeals in terrorism, criminal, and myriad other cases from Connecticut, New York, and Vermont.

Chatigny was tapped to fill a vacancy created when then-Circuit Judge Sonia Sotomayor was elevated to the Supreme Court. But his candidacy quickly hit a snag amid a partisan battle over Chatigny’s handling of the death-sentence appeals in the Michael Ross case.

During Chatigny’s confirmation hearing this spring, Republicans sharply questioned the judge about his conversations with the attorneys in the Ross case to determine whether the convicted rapist and killer was mentally competent to waive his right to appeal his execution.

GOP critics said that move, along with Chatigny’s order temporarily postponing Ross’s execution, illustrates that the judge is soft on sex offenders and hesitant to impose the death penalty. Ross, who had confessed to raping and murdering a series of young women in the early 1980s, was eventually executed in 2005, becoming the first prisoner to be put to death in New England in more than four decades.

“I’ve never seen a circumstance in which a judge went so far in a case in which there is no doubt about the guilt… to actually frustrate the lawful Connecticut sentence of death,” said Sen. Jeff Sessions, R-Ala., the top Republican on the panel. “He should not be elevated to the 2nd Circuit.”

Chatigny said at the confirmation hearing that he was trying to protect the “integrity of the system,” but conceded that he would handle the case differently if he had it to do over again. Democrats came to Chatigny’s defense, saying that his actions showed he carefully considered all the evidence “before imposing the ultimate penalty,” as Leahy put in during the April 28 hearing.

In June, the committee approved Chatigny’s nomination on a party-line vote. But because the full Senate failed to vote on him before their summer break, Chatigny’s candidacy was kicked back to the starting line.

Now, he is one of more than dozen judge candidates stuck in a partisan stand-off, as lawmakers scramble to wrap up the 111th Congress. In his statement on Friday, Leahy accused Republicans of stalling at least 20 judicial nominees.

“I welcome debate and a vote on those few nominees that some Republican Senators would oppose,” Leahy said, naming Chatigny and six others. “But that is not what is happening ….  What is happening is that judicial confirmations are being stalled virtually across the board.”

Sessions has sharply rebutted such complaints, noting during last week’s meeting that the committee has acted on 47 candidates for the nation’s district courts, 18 for circuit courts, and 2 for the Supreme Court.

“We’ve moved nominations I think very expeditiously,” said Sessions. “[But] where there are concerns, we’re not just going to rubber stamp them.”

And at last week’s session, it was a crunched schedule more than GOP opposition blocking action on Chatigny’s candidacy.

Erica Chabot, a spokeswoman for Leahy, said the chairman knew he wasn’t going to have a quorum for very long, so he skipped over Chatigny because he wanted to get through less-controversial legislative business before too many senators left to attend to other matters.

“Rather than just talking about Bob Chatigny and not voting on anything, we did the things we were able to do,” she said. Chatigny’s nomination will likely be taken up at the committee’s next session in early December, she said.

The nomination of another 2nd Circuit candidate, Susan Carney, deputy general counsel at Yale, could also come up at that session. Carney has not sparked controversy so far.

But it’s unclear if the full Senate will make time for a full vote on either Chatigny or Carney before the end of the year. Republicans are certain to oppose a quick vote on Chatigny, and Democrats may want to spend their political capital on other matters, such the about-to-expire Bush-era tax cuts and the long-overdue 2011 spending bills.

Obama could re-nominate Chatigny in January, when the next Congress convenes. But by then, the judge’s biggest supporter, Sen. Chris Dodd, will be retired from the Senate.

Sen. Joseph Lieberman, an independent who caucuses with the Democrats, will take the lead in recommending judges to Obama in the next Congress. A spokesman for Lieberman noted that the senator has supported Chatigny’s nomination, but declined to say who he might recommend if this post remains vacant come January.

“As the senior Senator from Connecticut, Senator Lieberman will take the lead on such nominations and will consult with Senator-elect Blumenthal next year,” said the spokesman, Marshall Wittmann.