For a diverse judiciary, Malloy willing to buck tradition
Gov. Dannel P. Malloy today will nominate six lawyers to the Superior Court, the first of what could be more than two dozen judicial appointments this year by a governor who says he intends to continue looking beyond the traditional confines of the trial bar to diversify the judiciary.
“I think we need some different kind of judges,” Malloy recently told a group of young lawyers at the State Capitol. “I am looking for diversity of thought, diversity of experience, diversity of gender.”
This afternoon, Malloy will get a chance to put those words into action as he loosens an informal moratorium on appointments to the Superior Court, which his office says now has 23 vacancies — with more to come through retirements.
“The governor’s nominees represent a spectrum of experience and diversity of backgrounds,” said Andrew McDonald, who oversaw the search for candidates as the governor’s general counsel. “It’s a pretty diverse array.”
Malloy’s only appointment to the Superior Court in his first year, when a budget crisis limited state hiring, was an African-American woman with no trial experience: Sybil V. Richards, 48, a deputy corporation counsel in Stamford, where Malloy was mayor for 14 years.
Appointments of corporate and academic lawyers with little or no litigation experience are relatively common on the federal bench, but less so in the state’s Superior Court. Richards’ appointment prompted grumbling that Malloy intends to ignore.
“If you rely on trial experience as a disproportionate measure, it’s going be harder to have a more diverse judiciary, which I think is absolutely important,” Malloy said. “The judiciary needs to look like the state of Connecticut that it serves.”
The state’s judiciary is now 83 percent white and 68 percent male, with 14 black men, four Hispanic men, six black women and one Latina among the state’s 179 judges as of November. Nationally, about 70 percent of all lawyers are men, as are trial judges.
Judicial nominations are both a perk and a burden for any governor, a chance to reward allies or friends of allies. In Malloy’s case, with a growing number of vacancies, it also is a chance to shape the judiciary at all levels.
By the end of 2013, three of the Supreme Court’s seven justices should be Malloy appointees: Lubbie Harper Jr., an Appellate Court judge whom Malloy appointed last year to the high court, and Ian McLachlan reach the mandatory retirement age of 70 in 2012; and Flemming L. Norcott Jr. turns 70 in 2013.
Malloy is the first Democratic governor in two decades to control appointments to the bench, although Connecticut governors traditionally accept recommendations from legislative leaders of both parties for some Superior Court nominations.
Three of Malloy’s four judicial appointments his first year were racial minorities: Richards to the Superior Court, Superior Court Judge Carmen Espinosa to the Appellate Court and Harper to the Supreme Court. His other appointment was Superior Court Judge Michael Sheldon to the Appellate Court.
Malloy is limited in his judicial choices to lawyers screened and endorsed by the Judicial Selection Commission, a 12-member panel of lawyers and non-lawyers appointed by the governor and legislative leaders of both parties.
The criteria for their selection does not specifically require trial experience.
“I think people have put too great of an importance on trial experience,” said Malloy, who tried 23 felony cases and won 22 as a prosecutor in New York before beginning his political career in Connecticut.
“I think what we needed to have is people who understand trial rules and appropriate behaviors in a courtroom,” he said. “That stuff can be picked up pretty well, and we have good training programs. So I am not as tied to litigation experience as some folks have been in the past.”
It is hard to know exactly how his willingness to look beyond the trial bar will expand the pool of potential judges. It’s unclear what percentage of female lawyers work in specialties other than litigation, though national surveys have found that women are more likely than men to work in public interest law, which includes government and non-profit agencies.
Prominent trial lawyers who have sat on the Judicial Selection Commission differ over the importance of trial experience to the success of a Superior Court judge.
Hugh Keefe, who says the grumbling over Richards’ resume was justified, said he places a premium on courtroom experience when screening candidates on the commission, though he acknowledged some excellent judges have none.
But Willie Dow, a fellow trial lawyer from New Haven, said he employed a broader criteria. Courtroom experience was a plus, but not a necessity. He wanted candidates who displayed intelligence, character and judicial temperament.
“If you get people with a core of decency and a dollop of understanding of the human condition, you’ve hit a home run,” said Dow, whose criminal defense clients have included Gov. John G. Rowland. “The other stuff you can kind of learn.”
With only a majority of cases resolved before trial, most of a judge’s work is off the bench, Dow said.
Hubert Santos of Hartford said trial experience is helpful, but he no longer sees it as a necessity.
“I actually changed my mind about this,” Santos said. “When I was first on Judicial Selection, I thought it was absolutely imperative for a judge have some courtroom experience.”
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