Let's set the record straight: Robert Chatigny's nomination to the United States Court of Appeals for the Second Circuit, one of the most prestigious federal judgeships in the nation, did not fail because of excessive partisanship. It failed because Chatigny was temperamentally unsuited for the position. Chatigny is not a victim. President Barack Obama should seize the opportunity created by Chatigny's failure to appoint a trial lawyer to the court. Such a move is long overdue.
Chatigny was appointed to serve as a United States District Court Judge by Bill Clinton long ago. At the time of his appointment, he had never tried a case to a verdict -- ever. Sure, he's plenty bright. But smart lawyers are a dime a dozen. Lawyers with a feel for what a trial is and how to conduct one are far more rare. That is the sort of sense you cannot acquire merely reading a book or briefs. It should go without saying that experience ought to matter in selecting judges. We require surgeons to serve long and punishing residencies while they get their hands dirty in the blood and gore of others under the watchful eye of senior hands: What sort of naivete supports placing a judge on the bench who thinks a courtroom is a bizarre and exotic tourist destination?
Of course, Chatingy had a powerful friend, former United States Senator Christopher Dodd. The judge's wife and her family were important and consistent contributors to Dodd's war chest; the judge is reported to have presided over the senator's most recent wedding. One sensed something akin to desperation as Dodd's tenure reached its end. Dodd's staff worked the phones in recent months, trying to neutralize critics of the judge.
Among the most vocal of the judge's critics were state prosecutors, who objected to Chatigny's threat to a lawyer representing Michael Ross, When Ross decided some 17 years after his conviction as a serial killer to abandon further appeals of his death sentence, he needed a lawyer to assert what amounted to his right to die. In a telephonic conference, Chatigny bullied the lawyer, suggesting his license might be at risk. It was a shameful piece of thuggery that was not so much an aberration as an example of the ethos this man without trial experience brought to the bench: Chatigny was and remains the consummate judicial manager, the sort of fellow trial lawyers often complain about as being unable to get out of the way of a developing case.
When Chatigny apologized for his treatment of Ross's lawyer before the Judiciary Committee, he looked, well, creepy. It had the look and feel of a shoe store clerk trying to explain why all the fancy women's shoes need to be packed and repacked. Chatigny wasn't sorry he bullied the lawyer; he was sorry it was an issue. His fetish is control. The umpire isn't supposed to join the catcher in taunting batters.
There is chatter among federal bar regulars that Chatigny may be looking to leave the bench, perhaps coveting a cushy general counsel's position in a corporation. Good riddance, I say. Make room for a trial lawyer on both the District Court and the Second Circuit.
But instead of seeing this failure of a nominee as an opportunity to promote change and bring experience to the bench, the president is looking to the same old status factories for new judges. He has resubmitted Susan Carney's name as a nominee for the Second Circuit. As I wrote month's ago of this nominee:
"For all I know Susan Carney is one of the law’s gems, a legal genius of rarefied intellect and Solomonic wisdom. Her resume is certainly impressive. Harvard College. Harvard Law School. Federal court clerk. Counsel to the Peace Corp. Yale University legal counsel. She glitters.
"Yet for all that, I never heard of Carney until President Barack Obama appointed her for a seat on the United States Court of Appeals for the Second Circuit. That worries me some. I go to court almost every day the courts are open and have for a good many years now. When someone is appointed to be a judge who is a stranger to the courtroom I worry. Doesn’t experience count for something?"
Carney, too, is little more than a stranger to the courtroom.
Why is it that criminal defense lawyers don't get judicial nominations? Why no public defender, for example? Or why no plaintiff's lawyer? Bill Bloss of Bridgeport's Koskoff, Koskoff & Beider is as smart and learned as any of the names floated for a judgeship. He has also tried civil and criminal cases. Why isn't his name surfacing?
C'mon, Mr. President. Shock us. Appoint a trial lawyer to the court. Judge Chatigny's withdrawal of his name in the face of inevitable failure gives you a second chance.