For the last two years, I have led a coalition of community organizations and advocates pushing for a judiciary that values people over powerful entities and corporate profits.
Our work aims to show the state government how skewed the courts are against ordinary people when they attempt to seek justice in a judiciary dominated by former corporate lawyers and prosecutors. While our work has had some success in shifting the conversation around demographic and professional diversity among Connecticut judges, I am sad to say that our strategy has faced nearly insurmountable barriers.
We had assumed that in a solidly Democratic state, our governor, legislators, and others in positions of political power would jump to address a problem harming so many of their constituents. We did not account for the obstacle that the legal profession would prove to be.
The judicial selection process takes place almost entirely out of public view, and lawyers have outsized influence throughout the process. First, the Judicial Selection Commission (selected by the governor) vets candidates for judgeships and decides who may be nominated. Then, the governor consults privately with whoever he wants —a group that usually includes the Connecticut Bar Association, which serves as basically the voice of the legal profession in the state. Finally, the governor makes a selection and sends his choice to the General Assembly’s Judiciary Committee (filled with a plurality of lawyers) for a vote. Finally, the nomination goes to the full assembly for confirmation.
While there is room for public comment while the nomination is in committee, historically it has been very difficult for pressure from the public to derail a nominee at that point in the process, regardless of how concerning the nominee’s record might be. The only early place with an official role for non-lawyers is on the Judicial Selection Commission, and —conveniently timed with our growing, coordinated efforts to engage the public in the process —the Judiciary Committee is now considering whether to take many of the non-lawyer seats on the JSC and hand them to lawyers.
In this way, the legal profession has set itself up as the sole arbiter of the law. Despite the fact that we are supposed to be a “government of the people, by the people, for the people,” lawyers have not only the final say on what the law means (as judges), but also on who gets to sit on our courts.
Every judge sitting on our state’s bench spent years practicing law and, for the most part, representing similar clients before they took the bench —and research shows that those prior experiences impact how judges approach the work of deciding from the bench.
Studies of federal courts have shown that former corporate lawyers and prosecutors are significantly more likely to side with powerful entities than with the individuals challenging them in pursuit of justice, leading to lower likelihoods of success in employment discrimination and wage theft cases and increased rates of incarceration of criminal defendants.
Here in Connecticut, we found that renters faced statistically significant greater likelihood of eviction and other poor outcomes in housing cases when corporate lawyers and prosecutors presided over their cases. More anecdotally, another analysis found that the Connecticut Supreme Court justice most likely to side with actual people was also the only one with significant experience representing actual people.
Considering the significant disadvantages to people appearing before former corporate lawyers and prosecutors, it should be alarming to all of us that those are the very backgrounds most overrepresented on the state bench. However, since our coalition shared its data and started meeting with elected officials, Gov. Ned Lamont has nominated four justices with backgrounds in either corporate law or prosecution and none who made a career representing people.
Considering all of this, when Lamont nominated former corporate lawyer William Bright Jr., as a State Supreme Court justice, what was the response from the legislature and lawyers with regard to the overrepresentation of corporate lawyers and prosecutors on the court? Crickets. Instead, Lamont got plenty of praise for diversifying the lower courts, despite now setting up a male supermajority on the state’s highest court.
In response to criticism from the coalition, institutional players pointed out Bright’s pro bono work and what a nice person he is —but this entirely misses the point. Most corporate lawyers do some kind of pro bono work, but the skewed outcomes for people appearing before them remain. Our analysis showed that under the current Appellate Court, where Bright is chief judge, people facing corporations or the state won only 18% of cases. For comparison, on the conservative North Carolina Court of Appeals, people have a win rate of 35%. Even if Bright is a good judge, these numbers should give us pause.
When I went to UConn Law, a constant refrain was that Connecticut is a small bar, and you need to maintain relationships with people on all sides if you want to make it. This advice is reasonable enough for aspiring Connecticut lawyers, but what about all of the people left out of this conversation? If our state’s lawyers, judges, and legislators care more about not embarrassing one of their own than they do about what happens to people in our courts, where do ordinary people go to find a champion on those courts?
As they always do, the system’s defenders will say that this is just the law. Judges are objectively applying the law as written, and we can’t be upset when it doesn’t work out the way we want. The numbers tell a different story. Study after study shows that judges’ backgrounds impact their rulings, so it simply cannot be that there is one sole and objectively correct way to interpret the law in every single case. Continuing to nominate judges who have only represented corporate and carceral interests is a policy decision to side with those institutions over individuals.
The law does not belong to lawyers. Our laws and our courts belong to the people, and there is nothing unreasonable about expecting those courts to be representative of the collective interests of the people of Connecticut.
Our coalition represents people from across the state, but we need more of us to realize our power and make our voices heard. When the governor wants to put a friend on our highest court, we do not have to accept that this is just the way it is. The government is accountable to the people most affected by our courts, not just the ones telling us they know best and who rely on the system to maintain their power.
Join us in demanding a pro-people Connecticut Supreme Court.
Steve Kennedy is Organizing and Network Director of the People’s Parity Project / Newtown.