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January 6, 2011

Payback (political or justified?) for (excessive?) judicial scrutiny of the death penalty

As detailed in this local article, which is headlined "Judge Robert Chatigny Drops Off Obama's List Of Nominees For 2nd Circuit Court Of Appeals," there was one notable name missing from the list of judicial re-nominatations put forward by President Obama yesterday.  Here are the basics of a story with a significant capital punishment component:

U.S. District Judge Robert N. Chatigny, whose nomination to the federal appeals court drew extraordinary criticism from Republicans and conservatives, has withdrawn from consideration.  At his request, Chatigny's name was removed from a list of federal judicial nominees that President Barack Obama on Wednesday sent to the incoming U.S. Senate for confirmation, lawyers familiar with the process said.

Obama nominated Chatigny to the U.S. 2nd Circuit Court of Appeals in February 2010. Immediately afterward, the Hartford judge became the subject of organized opposition by Senate Republicans critical of his record in a 2005 hearing that postponed the execution of serial killer Michael Ross.

Senate Republicans criticized Chatigny decisions in criminal cases and, in the 11th hour hearing in the Ross case, accused him of substituting personal opposition to the death penalty for the law.  A conservative group last year used Ross and Chatigny in television ads opposing the candidacies of Senate Democrats suspected of supporting Chatigny.

Chatigny supporters defended his decisions, in Ross and elsewhere.  Non-partisan observers said he compiled a moderate record over 16 years on the bench and was positioned to the right of more liberal Obama nominees who fared better in the confirmation process.  Chatigny's nomination failed in spite of support by politically active Republican jurists and lawyers such as Michael B. Mukasey, U.S. Attorney General in the administration of George W. Bush.

Non-political observers said Chatigny's nomination fell victim to partisan warfare in the Senate.  Over the past three administrations, these observers said, the party out of the White House has become increasingly effective in killing or delaying presidential judicial nominees....

Some lawyers said the Chatigny case was selected as a political tool to be used against Obama because his actions in the Ross case were easily understandable compared with more esoteric legal positions taken by other Obama nominees: He threatened the license of a lawyer who argued that Ross had a right to waive appeals and face execution.

Chatigny immediately apologized for the threat, and a judicial review panel found his behavior unusual, but acceptable.  Colleagues said he was uncomfortable with the prolonged criticism that accompanied his confirmation process.

I recall being surprised and a bit troubled by how Judge Chatigny handled the Ross case, though I have never examined the case closely enough to make an independent assessment as to whether that case reflected poorly on his judicial temperment or whether it alone should provide a justified basis for resisting Judge Chatigny's elevation to the Second Circuit.  I will add that it seems much more appropriate for Senators and others to make judgments about judicial nominees based on their track record as judges than to do so on the basis of comments in a speech (as was done with Justice Sotomayor) or whom the nominee long ago clerked for (as was done with Justice Kagan).

January 6, 2011 at 09:59 AM | Permalink

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Chatigny is a hack of the highest order. First of all, he stated that Ross' sexual sadism was a mitigating factor or even something that made Ross innocent of murder. He also said that he understood where Ross was coming from when Ross said he had suffered an injustice. Second of all, this imperious twit threatened the law license of a guy simply following the client's orders. Don't we have enough stupid (and you have to be stupid to say what Chatigny said about Ross' criminal culpability) and imperious judges on the federal bench?

Posted by: federalist | Jan 6, 2011 9:10:31 PM

It is not his "scrutiny" of the death penalty, but his still not withdrawn statement that sexual sadism is a MITIGATING factor, that is, to my way of thinking, disqualifying.

If a Bush nominee had said that, his nomination would have been hooted off the Senate floor.

Posted by: Bill Otis | Jan 6, 2011 9:32:41 PM

"his still not withdrawn statement that sexual sadism is a MITIGATING factor."

The only sources I found on a quick search have the quotation like this: "[Ross] never should have been sentenced to death because his sexual sadism, which was found by every single person who looked at him, is clearly a mitigating factor." (My emphasis.)

These sources don't say whether the excerpt is from remarks during sentencing, or in a reasoned opinion, or what. In any case, it's pretty clear from the italicized portion (elided in Bill Otis's paraphrase) that by "sexual sadism" Chatigny was referring to a psychiatric disorder. And of course there is nothing remotely unreasonable about viewing a psychiatric disorder as a mitigating factor.

I certainly agree with Bill, though, that had a Bush appointee said something similar, there'd be similar sophistries being spun by many of his political opponents.

Posted by: Michael Drake | Jan 7, 2011 11:10:06 PM

Uh, Michael, the jury has the right to determine the existence and weight of a mitigating factor, not some jerk federal judge years later. By the way, Michael, Chatigny said he agreed with Ross when Ross said he had suffered an injustice. Chatigny is an imperious idiot. The bench has enough of both--we certainly don't need to elevate one with both of those qualities.

Posted by: federalist | Jan 8, 2011 10:02:55 AM

As much as I value your bare opinions, federalist, the issues you are touching on really don't have anything to do with the issue I was addressing. I agree with you, though, insofar as we could all stand to hear less from imperious idiots.

Posted by: Michael Drake | Jan 8, 2011 1:46:02 PM

The context of a death penalty execution tends to mitigate Chatigny's actions, but concerns remain.

He threatened to yank Ross's lawyer's license, not a bankrupt threat. He absolutely would have succeeded in Connecticut as the chief federal judge.

He called over to the state court which spurned him. Kudos to the state court.

He claimed to forget he briefly was involved in the Ross case as a private attorney, even claiming to forget writing Ross a letter, Ross, the first man put to death in Connecticut since the Sixties doesn't strike me as someone you would forget.

Is this a mish mash or an unmistakable personality operating here? One that abuses power in a casual way, by taking a case he knew he was involved in, threatening a lawyer's license and calling over to the state court?

Did he forget or is he used to throwing his weight around and getting away with it?

I think he exhibited an unmistakable personality in his handling of the Ross case.

The question is, was this personality a drastic departure from his norm, as he claims, or just a more high profile example of it, perhaps less restrained than usual, on the occasion of a review of death penalty issues he obviously cared deeply about?

He did not care to query Ross personally, which makes me wonder too whether the hearing was about Chatigny or Ross.

By the way, news reporters tried to attend the Ross hearing and he refused them entry, which also is par for the course for this judge.

He forced them to actually buy the transcript, which is freelance pay to the court stenographers who make money partly as staff, partly freelance for the transcripts they sell.

Reporters had to buy entry to this public hearing after the fact by buying a transcript or otherwise drumming up a copy of the transcript from one of the parties to the case.

You won't find an order closing that hearing to the public but no member of the public was allowed to attend.

That's how Chatigny is. The Ross hearing was not unique in this. That is how he is every day of the week when it comes to maintaining a court that is open to the public. He closes hearings without any grounds for closing them. He closes them without even issuing an order closing them. He just says No. It's his personal policy.

Chatigny cares about Justice and Chatigny cares about Power and there are times when it becomes clear you can't serve both, ever.

We kid ourselves by peopling the benches in this country with overrated examples of integrity, honesty, character, faith, fidelity, and intelligence who really aren't any of those things except in very conditional terms.

There were nonpartisan reasons for opposing this nomination.

Posted by: Anon | Jan 9, 2011 2:48:16 PM

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