Gov. Ned Lamont, who has demonstrated little interest in the political nuances, benefits and occasional hazards entailed in appointing judges, is preparing to make his first class of nominations to a trial court system that has an unprecedented number of vacancies.
Lamont, a Greenwich businessman elected in 2018, said in an interview he reluctantly plans in coming weeks to fill about 15 of the 50 vacancies on the Superior Court bench, convinced of the need by the chief court administrator, Judge Patrick Carroll.
“My predecessor appointed a lot of judges. And I’m not sure how many judges, additional judges, we needed [my] first year,” said Lamont, who is three weeks into his third year office. “A lot of people said, ‘Appoint judges as part of your legacy.’ I said, ‘I appoint judges just when we have a job for them to do.’ ”
Gov. Dannel P. Malloy nominated 30 Superior Court judges in 2018, his last year in office, though he left nine funded positions empty. Lamont was considering a small class of up to nine judges when the COVID-19 pandemic hit in March, forcing an end to the legislative session and closure of many courts.
With the suspension of jury trials, the pandemic temporarily has eased the workload on civil and criminal trial judges in the Superior Court, while creating new stresses as the courts try to function remotely and warily watch a growing backlog.
The governor said he has been made aware there are 35 other open spots.
“And I said, ‘Who cares? How many judges do we need?’ The fact that there are vacancies compared to where we were four years ago is sort of irrelevant to me,” Lamont said.
Judicial nominations provide governors with opportunities to reward allies and to bring racial and gender diversity to a court system that is predominantly white and male, despite women reaching parity with men in law schools 20 years ago.
The judicial branch is authorized to have 201 judges: seven on the Supreme Court, nine on the Appellate Court and 185 on the Superior Court.
How many trial judges actually are needed versus authorized rarely, if ever, has been precisely and publicly articulated by the judicial branch. Carroll declined through a spokeswoman, Rhonda Stearley Hebert, to discuss the current needs of the system.
“The power to make and affirm nominations to the bench rests exclusively with the Executive and Legislative branches. The Judicial Branch has no role in that process. As such, we would decline further comment,” Stearley Hebert said in an emailed statement.
The judicial system at times actually has balked, albeit discreetly, at the prospect of new judges, complaining that it lacked the support staff necessary to utilize them. Judicial is a co-equal branch, though one that relies on the legislature and governor for resources.
Rep. Steve Stafstrom, D-Bridgeport, the co-chair of the Judiciary Committee and a civil litigator in private practice, said the court system has not communicated a precise need to his committee, but it is reasonable to assume the number of vacancies has contributed to a backlog of business.
“I am concerned that there is a backlog of business that still needs to be processed to the courts,” Stafstrom said. “As we sit here today, I think it’s still taking too long, for particular matters to be resolved. And a deficiency or vacant vacancies of 50 judges probably is too many.”
The number of authorized judges is set by the General Assembly, whose members are known to occasionally have a friend or two interested in becoming a judge. That makes nominations political capital that Lamont, a Democrat, doesn’t seem interested in exploiting.
“That’s fair. But everybody wants to be a judge. It’s incredible,” Lamont said, laughing. “But I’ll do it based on need, not based on favor.”
Other than filling one vacancy on the Supreme Court and three on Appellate Court, Lamont has made no new judicial nominations in his two years in office. He has nominated serving judges for new eight-year terms, as is longstanding practice in Connecticut.
One of his nominations did have a political dimension: His nomination for the Supreme Court went to Christine E. Keller, a well-regarded judge with 27 years of experience on the Superior and Appellate courts. She also is the mother of House Speaker Matt Ritter, D-Hartford.
The new class of Superior Court judges will be a test of Lamont’s commitment to building on Malloy’s efforts to diversify the judiciary. In his previous four nominations, Lamont named three women, one of whom is biracial, and one Latino.
As of last July, when he made those nominations, the system had 118 judges who identified as white, 24 as Black, 5 as Hispanic, 7 as Asian and two as multi-racial. There were 90 men and 66 women.
The governor can only nominate judges for the Superior, Appellate and Supreme courts from a pool of candidates screened and endorsed by the Judicial Selection Commission. By tradition, governors often take suggestions from the leaders of the legislative caucuses.
In Gov. M. Jodi Rell’s last year as governor, her nomination of an all white class of 10 judges became an issue that, among other things, complicated passage of the budget. Legislators held up confirmation until Rell, who had assured lawmakers of a more diverse second class of nominations, also gave budget concessions.
At the time, Rell had a limited pool of minority lawyers who had cleared the Judicial Selection Commission. She also had deferred some of her picks to legislative leaders more interested in the narrower cause of rewarding constituents than the broader one of diversifying the judiciary.
Lamont’s nominations will come as the court system has scrambled to update its technology, a necessity during a pandemic that lawyers say also has contributed to the backlog in cases.
Civil cases have gone forward with bench trials in which the judge is the finder of fact, not a jury. The system had made preparations to begin socially distanced jury trials in the fall, then postponed them when COVID infections spiked in a second wave of cases.
Stafstrom said the pandemic has forced the court system to modernize and adopt practices that should remain after the courts reopen. Status conferences and arguments on relatively simple issues, such as the production of documents in civil cases or a final decree in divorce cases, now are resolved efficiently on video conference calls.
Lamont said the pandemic provided a necessary nudge to the courts, where he says modernization is “an uphill climb.”
“I mean, they are Luddites,” Lamont said.
Michael A. Albis, the chief administrative judge of family matters, said the courts had no video conferencing capabilities when the pandemic hit, leading to the closure of most courts. The first workaround involved giving the parties a list of questions in custody and divorce cases, then accepting written answers submitted as sworn affidavits.
“We prepared forms that covered all the basic questions that we would be likely to ask and required to ask if they were before us at a hearing. And that way, there have been thousands of cases that have asked for final judgment or final approval of agreements without need of a hearing,” Albis said.
An executive order by Lamont allowed the courts to make temporary changes, some of which the judges and lawyers would like to make permanent.
“There is a whole group of cases that we’ve basically eliminated the requirement of a hearing at all,” Albis said. “And it’s worked so well that we actually are asking the legislature this session to give us the permanent authority with an amendment to the statute to eliminate the need to go back to having a hearing in cases where there’s a full agreement that appears appropriate.”
The courts now have access to Microsoft Teams, a suite of software that includes video conferencing. It was adopted a year before the pandemic by the executive branch.
“By around June, we had Microsoft Teams integrated with our court reporting system so that we could actually conduct evidentiary hearings remotely,” Albis said. The courts have now conducted between 15,000 and 20,000 hearings by video.
Albis said most judges would prefer that longer hearings eventually be conducted in person, where the back and forth is easier. Long hearings online also are more likely to involve someone losing their connection.
“And then you have to wait to get them back,” Albis said. “But it’s worked far better than I thought it would. I had some trepidation about trying to do an evidentiary hearing remotely. And it’s better than I expected, and it’s really worked smoothly.”
He recently had one video conference scheduled for midday before a judge in Stamford.
“And instead of me sitting in the car for an hour and a half, fighting the traffic from Bridgeport down to Stamford to wait around the courthouse for an hour for a case to be called, I’m going to zoom into this conference for 20 minutes,” Stafstrom said. “It takes a lot less personnel. It’s a lot easier on the lawyers. It’s a lot cheaper for the clients.”
Stafstrom said technology never would eliminate the need for in-person proceedings, particularly for trials and arguments on significant motions, but it can and should streamline routine business.
“And frankly, I think, eventually you could get to a point where you could really kind of consolidate even some courts,” Stafstrom said. “I mean, we have an inordinate amount of courthouses in the state of Connecticut.”