Glastonbury Man: Justice Borden's Efforts "Sour Grapes" and "Political Maneuvering"

Although the press has thus far ignored the questionable decision of Justice Borden (see my post below) the lead letter in today's Hartford Courant reads:

"In response to the April 25 news article 'Borden Letter Indicates Contentious Atmosphere On Court':

It is obvious that Connecticut Supreme Court Acting Chief Justice David Borden has attempted a last-ditch effort to derail Justice Peter Zarella's nomination for chief justice. I find this to be nothing more than sour grapes and political maneuvering by Borden and legislative leaders.

Isn't it true that Borden stands to benefit from Zarella's appointment being stopped?

Borden should focus on being a judge, not a politician. He is guilty of what he is making accusations about. The holding of the decision on a freedom of information case had no bearing on either that case or the confirmation process. Therefore, it is a moot point.

It appears that Democratic Party leaders have drummed up the media circus with the purpose of blocking the nomination. On all accounts, former Chief Justice William Sullivan has a long history of impeccable character and ethical standing. It is disgraceful that an ambitious judge (Borden) and the state Senate leadership would attack him for personal and political gain.

Jeffrey Wihbey
Glastonbury"

In case your wondering, I am NOT Mr. Wihbey.

State Senate to "Call" Supreme Court Justices to Testify

The Associated Press is reporting:

"State lawmakers said Wednesday that they expect to call the six current Connecticut Supreme Court justices and the retired chief justice to testify at an investigative hearing into why the court's leader delayed the release of a decision to help his potential successor's confirmation.

'I would think it would be very likely if most, if not all, the justices would be asked to meet with the committee,' said Sen. Andrew McDonald, D-Stamford, co-chairman of the legislature's Judiciary Committee.

Lawmakers have not yet set a date for the public hearing, but said it will likely take place after the legislature adjourns May 3."

In a further errosion of both the separation of powers and the apolitical face of the judiciary, acting Chief Justice David Borden "informed legislators that he has agreed - at their request - to preserve all documents and e-mails the Judicial Branch controls relating to Sullivan's April 15 retirement and Rell's nomination of Zarella." Further, "Borden said he also directed court officials to preserve any documents relating to the court ruling that Sullivan delayed....Borden, in a letter to lawmakers, said he has no authority to direct individual justices to comply with the legislature's request to preserve documents. However, he said he 'respectfully requested' they consent. 'I have no reason to believe that any of them will not do so,' he said."

Because of the separation of powers, I don't think that the legislature has the right to force any Supreme Court justices to testify. It therefore appears that any justices who appear will do so of their own volition. In other words, expect the battle lines to be drawn even sharper and the reputation of the court to drop even farther.

Crisis at the High Court

In an article titled "High Court Nomination Troubled," the Hartford Courant reveals a truly sad episode in the history of our High Court. The article begins:

"Former Chief Justice William J. Sullivan secretly postponed release of a controversial ruling on access to court documents to enhance Justice Peter Zarella's prospects of being confirmed as chief justice, precipitating an unprecedented crisis of confidence in the state's highest court.

The 'bombshell' revelation was made to the governor and legislative leaders Monday morning in a three-page letter written by Senior Associate Justice David M. Borden, who is acting chief justice.

"The intent and effect of Chief Justice Sullivan's conduct was to deprive the legislature of the timely knowledge of Justice Zarella's vote in that case," Borden wrote of the court's sharply divided ruling last week foreclosing access to court documents under the Freedom of Information Act."

The Courant and other publications have thus far concentrated on the disturbing and improper decision of former Chief Justice Sullivan to withhold a judicial opinion with the hopes of positively affecting Justice Zarella's nomination. Criticism of the former Chief Justice of the state is appropriate and fair and his actions have the possibility of sacking Justice Zarella's nomination. Because I have no doubt that this aspect of the story will be sufficiently combed over by the media I wish to concentrate on an equally disturbing aspect of the story.

Equally disturbing is Justice David Borden's decision to inform the senate judiciary committee of the inner workings of the court, no matter how offensive, via his letter. The Courant has posted Justice Borden's letter and a thorough reading of it yields absolutely no reason -- other than political -- for the acting chief justice to advise the senate judiciary committee of the events that transpired. Justice Borden explains in his letter his authority to contact the judiciary committee as follows: "I believe it is my duty, acting as the head of the Judicial Branch pursuant to Connecticut General Statutes § 51-3, to bring these facts to your attention." However, nothing in Section 51-3 (which merely indicates that Borden is properly the acting chief justice) outlines such a "duty" to become involved in a political process. Short of any legislative empowerment, Borden's view, taken to its logical conclusion, would mean that his powers as chief justice are plenary. Given the history of the separation of powers, this simply cannot be. (A few examples demonstrate the ridiculousness of Justice Borden's argument. For example, since this "power" is not identified in the General Statutes, why would only the chief justice have it? Why not junior justices, too? If the sitting chief justice were the violator would the next justice in line have the power?) Moreover, to the extent that Justice Borden believed Chief Justice Sullivan's actions were improper because they affected a political process, his actions had the same affect and were therefore equally improper. After all, what would happen if Justice Zarella, during his confirmation were to misstate his position on a prior case? Would Justice Borden (or any other justice) be under a "duty" to report this misstatement? After all, such a misstatement would be just as likely as this incident to affect the senate judiciary committee. Such a duty simply does not exist especially when it would threaten to undermine the whole integrity of the court.

It's also relevant to note that Justice Borden -- who many regard as the intellectual leader of the court -- was not powerless to act in response to Chief Justice Sullivan's actions. He could have brought the matter to the attention of the Judicial Review Council. Justice Borden has been on the court since 1990 and he was therefore quite familiar with the disciplinary punishment handed out by that body to fellow Justice Fleming Norcott in 1994 for serious although dissimilar indiscretions. That would have been the proper forum to air his concerns.

The issue is also compounded somewhat by the fact that Justice Borden was known to have been desirous of the chief justice seat prior to the nomination of Judge Sullivan. This history between the justices will no doubt be brought to light and will also make this rift even uglier.

One final observation, albeit one akin to a possible conspiracy theory. On March 15 the senate reappointed Justice Borden to another eight year term. (Because he will be forced under state law to retire from the Supreme Court at age seventy he will not serve out his full term.) Chief Justice Sullivan announced his retirement two days later. Could it be that CJ Sullivan postponed his announcement until after Justice Borden's reappointment in the hopes that this would diminish the chance that Justice Borden would be the nominee? Perhaps that is a stretch, but one thing is certain: it would not be the first time that a judge (state or federal) delayed his retirement for succession reasons.

I'll blog more on this later as the story develops, especially since I believe the entire judicial selection process in Connecticut is deeply flawed. For now this much is clear: while there are no winners in all of this, the loss is clear: the integrity and reputation of our high court.

Rell Outflanks Dems on Teachers' Pensions

The Hartord Courant is reporting:

"Republican Gov. M. Jodi Rell announced Wednesday that she is willing to fully fund the state teachers' retirement account - welcome news to legislative Democrats who have made the pension plan one of their top priorities this session."

Although the Democrats in the state House and Senate are trying to spin Rell's position as joining theirs, the simple fact is that the Democrats have been in charge of both houses while the retirement account has been grossly underfunded.

The issue of underfunded pensions has always amazed me. After all, the teachers' union has the Democrats in its back pocket as typified by the Democrats position on school choice, No Child Left Behind, etc. Why then didn't the union use its influence over Democrats to succeed on this crucial issue? I suppose that the reason for that failing is the same as the reason that Democrat strongholds like West Hartford annually get shortchanged under the state educational funding formula.

In any event, it now appears as if Rell -- whose approval rating is already through the roof -- has yet again outflanked the Democrats.

New Haven Independent Puff Piece on Ned Lamont

In the latest example of the local media's obsession with Ned Lamont, yesterday the New Haven Independent ran a puff piece about a recent talk given by Mr. Lamont at Southern Connecticut State University. The event was attended by a whopping 30 (!) people, two of whom were members of the press! The piece, which could have easily been written by the Lamont campaign, contains the following ridiculous assertions:

"In a matter of weeks, Lamont, a political newbie who made his fortune starting a Greenwich-based cable company, has moved from a longshot protest candidate furious at Lieberman's embrace of the Iraq war to the Story of the Year so far in Connecticut politics."

....

"Thrown off balance, Lieberman has publicly admitted he may bolt the Democratic Party and run as an independent in November if Lamont beats him in the Aug. 8 primary."

Story of the Year? I suppose that's true, but only because the media in Connecticut has found its new darling. As for Lieberman being "thrown off balance," how can that be true when Lamont has received absolutely no backing from the vast Democrat politicians in the state? Mark my words. Once Lamont's campaign burns out the media will embrace another candidate before his body is cold. (Incidentally, I predict that candidate will be Chris Murphy (D) who is hoping to unseat Rep. Nancy Johnson in the Fifth Congressional District.)

Also, I thought that Lamont was born into wealth? Did he really "make his fortune" via his company or was he born into it?

Tax Returns?

Tax Day 2006 -- a day lamented by many of us -- has come and gone. In our neighboring state of New York, the gubernatorial candidates and Governor Pataki have made public their tax returns. (SHOCKER: they are all wealthy.) This begs the question, will our gubernatorial candidates make their returns public? To date, it appears that only John DeStefano has indicated a desire to share such information. On January 23 of this year he issued a press release stating that he had made public his tax returns from 2002, 2003 and 2004. No word yet on 2005 or 2006.

I'm not sure any of this matters a great deal, especially since Gov. Rell is the most popular governor in America, but it is odd that such a common practice is not being done here in Connecticut.

DeStefano "Reminds" New Haven Police Department Their Job is to "Protect Illegal Immigrants"

I would be remiss if I did not post one potentially alarming comment made during the recent debate regarding immigration reform. According to the Hartford Courant, at a debate in Hartford on April 11, New Haven Mayor and Gubernatorial Candidate John DeStefano, Jr. (D) made the following remark concerning illegal immigrants:

"DeStefano said he has issued an order to his police department, reminding officers their job is to protect illegal immigrants, not prosecute them for their status."

Republican Candidates for U.S. Senate Nomination

The Hartford Courant is reporting: "Alan Schlesinger, a former six-term state representative and mayor of Derby, announced Monday he will seek the Republican nomination for the U.S. Senate." The Hartford Courant earlier reported that Schlesinger is a "tax attorney who graduated from the University of Connecticut School of Law and the University of Pennsylvania's Wharton School of Finance." According to the Journal Inquirer, Schlesinger is a self-described "moderate conservative."

Let's take a look at the potential nominees:
Schlesinger, 48, "must compete with Paul Streitz, a Darien resident who also is seeking the Republican nomination." Streitz, a 62 year old Vietnam veteran, is the co-founder of Connecticut Citizens for Immigration Control and author of the book "Oxford, Son of Queen Elizabeth I." His platform includes setting a timetable for bringing our troops back from Iraq, tougher illegal immigration controls, and a repeal of NAFTA and other trade bills. (Interestingly enough, Streitz position on Iraq is seemingly more akin to the Democrats than that of Senator Lieberman.) Streitz sought to unseat Sen. Dodd in 2004, but gained only 26 delegates to eventual Republican nominee Jack Orchulli's 713.

Orchulli, who lost by a landslide (34 percentage points) to Sen. Dodd in 2004, said as recently as Friday that he is still considering another run for the Senate.

At least one CT Republican, Representative Chris Shays, has confirmed that the party is considering cross-endorsing Senator Lieberman.

The Republican party will endorse a candidate on May 20.

For more information on Schlesinger and Streitz please see this March 23 article from the Journal Inquirer:
http://www.journalinquirer.com/site/news.cfm?newsid=16358808&BRD=985&PAG=461&dept_id=161556&rfi=6

For Mr. Streitz's campaing website, please see: http://www.streitzforsenate.com/

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The purpose of this blog is to offer you, the reader, articles and commentary concerning the great state of Connecticut that I find interesting. While I fully expect to post stories from other jurisdictions it is my hope that the lion's share of stories posted will concern the Land of Steady Habits.

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