Justice Richard N. Palmer, author of state Supreme Court decisions that struck down the last vestige of capital punishment and legalized same-sex marriage in Connecticut, was confirmed for a fourth and final eight-year term on the court Wednesday after a rare second-guessing of the court’s opinions and conduct by the General Assembly.
With a majority of their members casting votes in opposition, Republicans departed from judicial tradition, focusing sharply on the legal underpinnings of court decisions, as well as raising concerns about the court’s collegiality, given sharply worded exchanges among the majority and dissenters in the death penalty case.
The House confirmed Palmer, 101 to 46. The Senate vote in his favor was 19 to 16.
Legislators quickly and unanimously confirmed Gregory T. D’Auria, who oversees the appellate division of the attorney general’s office, to fill the vacancy left by the retirement of Justice Peter T. Zarella, an appointee of Gov. John G. Rowland. Four of the seven justices now are appointees of Gov. Dannel P. Malloy.
The debate on another term for Palmer was brief in the House, where the only member to speak in opposition was Rep. William A. Petit Jr., R-Plainville, the husband and father of three murder victims whose killers no longer face execution as the result a 4-3 opinion authored by Palmer that was affirmed in a subsequent 5-2 decision.
The General Assembly had repealed the death penalty for prospective crimes in a bill that did not touch death sentences already in place. In his majority opinion invalidating those sentences in 2015, Palmer wrote, ”The death penalty is no longer consistent with standards of decency in Connecticut and does not serve any valid penological objective.”
Petit objected then and again Wednesday.
“I do not believe it is appropriate for judges, especially Supreme Court justices, to legislate and to attempt to set policy from the bench,” Petit said, rising to make a brief statement. “We expect our judges to fairly interpret our laws and not politicize their decisions.”
Of the 71 House Republicans, the vote was 44 to 27 against Palmer. Every Democrat present except two, Reps. Larry Butler and Jeffrey Berger of Waterbury, voted to confirm him.
In the Senate, Sen. John A. Kissel, R-Enfield, a co-chair of the Judiciary Committee, and Sen. Craig Miner, R-Litchfield, voted with 17 Democrats to confirm Palmer. Every other Republican opposed him, except for the absent Sen. Tony Guglielmo of Stafford. Sen. Joan Hartley of Waterbury was the sole Democrat opposed.
Senate President Pro Tem Martin M. Looney, D-New Haven, a lawyer and parti-time college professor, warned that a vote against Palmer for the reasons stated during the debate, would be a blow against a judiciary that is largely insulated against politics.
“Judicial independence has to be maintained,” Looney said. “I think a vote against Justice Palmer would be a dangerous one.”
Subject to legislative confirmation, judges in in Connecticut are appointed by governors from a list of candidates approved by a non-partisan Judicial Selection Commission. By tradition, they are nominated and confirmed to additional eight-year terms, barring questions of competence and temperament.
Sen. Beth Bye, D-West Hartford, rushed to the Senate to vote for Palmer after landing at Bradley International Airport after an extended stay at the National Institutes of Health, where her wife was undergoing treatment for cancer.
“Notice, I didn’t say I landed with my partner, with my roommate,” said Bye, whose same-sex marriage was the first in Connecticut after the court legalized gay marriage in a 4-3 decision in 2008.
“Justice Palmer confirmed my constitutional right to marry the person I love back in 2008,” Bye said. “We know now he was ahead of his time. We also know Justice Palmer and the Supreme Court made their decisions based on solid judicial precedent, not on personal opinion, not on prejudice.”
Sen. Len Suzio, R-Meriden, said he was impressed by Palmer’s intellect, demeanor, patience and humility during his extended confirmation hearing, but he concluded that Palmer had been an activist judge.
Sen. Len Fasano, R-North Haven, the Senate GOP leader, said his vote against Palmer was meant as a rebuke of what he saw as the unseemly criticisms of each other by Palmer and Justice Carmen Espinosa in an exchange intitiated by Espinosa in a murder case.
Fasano suggested the justices save their personal criticisms for the privacy of their chambers.
“Don’t do it on the pages that end up on our shelves and our law books,” said Fasano, a lawyer. “It demeans that court, so I’m angry about it. A message has to be sent that enough is enough.”
House Minority Leader Themis Klarides, R-Derby, who voted against Palmer, said during an interview she suspected that many of the votes were meant as a message, knowing that Palmer’s confirmation was not in jeopardy.
But she said the vote also signaled a greater willingness by legislators to end what she called “rubber stamping” of judges up for confirmation to subsequent terms after joining the bench.
“I think you’ve seen in the last five or six years, that’s not the case any more,” said Klarides, a lawyer. “You see a lot more thorough vetting at our level, not just within Judicial Selection. I think that’s good for the process.”
Rep. William Tong, D-Stamford, the co-chair of the Judiciary Committee, said he thought the questions posed to Palmer during his confirmation hearing were healthy, but the line for denying reappointment should rest on overall competence and temperament, not second-guessing decisions.
What is the standard for ending the career of a Supreme Court justice?
“Luckily I haven’t seen it yet,” said Tong, a lawyer. “I think it’s one of those things, you’ll know it when you see it — lack of command of the law, poorly written decisions, not being present, not participating, not writing, poor temperament. I think those are key indicators of a justice who isn’t getting his or her job done. I don’t think we’ve seen it yet.”
Palmer, 66, a former U.S. attorney and chief state’s attorney, was appointed to the Supreme Court 24 years ago by Gov. Lowell P. Weicker and is its longest-serving member. With a mandatory retirement age of 70, Palmer will not face another confirmation for another term as a justice.
Correction: As originally posted, this story referred to the death penalty decision as the source of the sharp exchanges that troubled Fasano.