You've probably heard the story of Peter Shumlin's preference for a justice to replace Associate Justice Denise Johnson, who has announced her retirement from the Supreme Court.
Justice Johnson has been a giant, and a model for many of us, especially lawyers, for her commitment to civil liberties and social justice, even if it hasn't always made her friends or landed her on the winning side of split decisions.
Now that she's leaving, Governor Shumlin's first appointment to the Supreme Court is the most important choice he's had to make so far. For this reason, it was very interesting to hear what he had to say about what he's looking for in a justice.
If you talk to lawyers around the state, they will say that the smart money for a new Supreme Court justice is governor's counsel Beth Robinson. She is widely recognized as smart, and she was the leader of the push for same-sex marriage, an issue that has been central to Shumlin's policies and values for years.
According to Bob Kinzel on VPR, Shumlin says he wants to name a person who is “smart, understands the law, and is tough on crime.” This news will probably be disappointing to Shumlin's liberal supporters.
It's worth thinking about what “tough on crime” means.
Judges, and especially appellate court judges, don't get to decide what happens to criminals. The Legislature defines the crimes. The Legislature decides the range of sentences that convicted criminals get.
Over the last fifty years or so, when politicians have talked about judges being tough on crime or soft on crime what they've mainly been talking about is not crime at all, but constitutional rights, and specifically the constitutional rights that people charged with a crime–in case you're wondering, the technical description of those people until they are convicted is “innocent”. These people are you, me, and everyone else who might be accused of doing something against the law, but is entitled to the full panoply of constitutional protections, protections against unreasonable searches and seizures, against self-incrimination, and all kinds of other protections, until we are convicted.
It was his stands in favor of protecting innocent people's constitutional rights that stimulated the “Impeach Earl Warren” movements in the 1960's.
The last time we had a Democratic governor it was Howard Dean, but the old Howard Dean, before he remembered that he was a Democrat. He was also tough on crime. In fact, it was somewhere between a rumor and an open secret that he had a litmus test for his judicial appointments.
Back in 1994 the Vermont Supreme Court reversed the murder conviction of a woman named Rebecca Durenleau, who had been tried and convicted of getting her boyfriend to murder her husband. When the case went up to the Supreme Court, the court held not only that the evidence of her guilt was entirely circumstantial, but that the evidence, even if you believed every bit of evidence the state put on, wasn't enough to prove her guilt.
Howard Dean hated this decision, and the word was that if you were a lawyer, no matter how smart you were, and how well-respected your accomplishments, you couldn't get a judicial appointment from him unless you disagreed with the Durenleau decision.
I've never been in that position, so I have no direct knowledge, but it was common knowledge at the time.
That was Dean's version of being “tough on crime”.
What's Peter Shumlin's version of “tough on crime”? We don't know. I do know that in these times, when constitutional rights have been under assault by the Nixon/Reagan/Bush court for decades, state constitutional rights are more important than they have ever been.
I also know that constitutional rights aren't just something we read about in books. They protect every one of us, but only if we have judges and justices who will stand up to protect the rights of one of the most unpopular segments of society: people who have been accused of committing a crime, but who are presumed to be innocent until the government, observing all the constitutional rights the defendant has, proves to a jury of their peers that they are guilty.
Oh, and there's one other thing I know. One of the lawyers who represented Rebecca Durenleau in that appeal that drove Howard Dean up a wall, was Beth Robinson.
So whatever Peter Shumlin means by “tough on crime”, I hope he also realizes how important it is for the courts to protect the rights of everyone who is accused of a crime, but is presumed innocent until proven guilty.
Thank You.This is very important. Especially given the incredibly f’d up recent decision from Indiana (Barnes vs. Indiana) that functionally invalidates the 4th amendment there and of course the slow fascist creep at the federal level. It’s more important now then ever given some of the precedents elsewhere to appoint judges who understand the constitution. “Tough on Crime” is a code phrase for “sympathetic to fascists”. Shumlin should know this.
Still, to this casual observer Chief Justice Reiber has always seemed pretty reasonable and the court doesn’t seem to return with split decisions too often so I’d be inclined to hold out judgment ’til the name is dropped. But that’s probably not a sufficiently pro-active attitude.
“Tough on crime” is one of the most supercilious whistles a modern politician can blow. Countless numbers of lesser unwashed political upstarts thrive on waving this bloody shirt. However, the Governor is the first public officer we’d expect to know better than to do this, and the last person we need to see trolling in this rhetorical swamp.
The high water mark for a qualified judge is courage to uphold the law and to maintain fidelity to our Constitution. “Tough,” “easy,” or “agenda driven” – to a particular type of case or litigant – is not the gold standard for a qualified judge. It is, in fact, just the opposite. The Gold Standard is fidelity to the rule-of-law.
Here is the bigger point, however. When politicians say “tough on crime,” what they mean is “brutal on criminals who are already off the streets.”
“Tough on crime,” in the real world, means the ability to foster and deliver policies that make it tough for crime to happen in the first place (you know, approaching this from the crime victim’s perspective at the front end rather than the jailer’s perspective after the fact). A liberal social agenda, quality education, economic opportunity, equal protection and – did I mention education, opportunity and economic stability – are the greatest crime-fighting tools any government has in its arsenal. Once politicians start asking judges to play catch-up for failed policies, by bringing a result-oriented philosophy to the bench, (e.g., “tough on crime,” “lazy on protecting the Constitution,” etc.) they are making a tacit admission of their own agenda’s weakness at preventing criminality.
“Tough on Crime” from the judiciary’s perspective = “Weak on policy” from the legislators and executives who write and implement state laws and policy.
Crime prevention and harm reduction take hard work, foresight and it takes courage and patience to achieve it. On the other hand, going medieval on people who are already caged or who have already become criminals, is a political punt.
I’d submit to the governor that he can resolve the apparent conflict between “tough on crime” and his “war on recidivism” by appointing somebody who understands the difference between real justice and just meting out punishment. Wanna be tough on crime? Reduce recidivism by supporting restorative justice and innovative re-entry programs.
I suspect anyone who is going to expect the Governor to make a strong “Democratic” appointment continues to ignore the apparent trend in this administration to be in “lets offset the Scott potential and run down the middle of the liberal / conservative road” in anticipation of our next campaign. No one thinks Peter is a far left guy in any context, but this move specifically is one that will make or break the opposition, should there be any, next time the polls open. This is a governor who probably plans to remain in the chair until Leahy moves over, so we are going to have some fairly middle of the road decisions at every turn. The Dean reference is a very good one, in that he really didn’t rediscover his liberal roots until he needed something to set him apart from the crowd of mainstream Dem Presidential candidates.
Great post Jack. I really hope it does not turn out to be an opportunity for the people who worked to get Peter elected, to get a slap in the face. Beth would fit a LOT of the slots we need to anchor a Court. I don’t think the 5th floor has the guts….
It remains to be seen what exactly the Governor means when he trots out the favorite Republican dog-whistles, like “tough on crime” and (in the case of environmental regulation) “streamlining.” They make me exceedingly nervous.
Add to that his stance that the rich are already bearing too much of a tax burden in Vermont, and the script becomes uncomfortably familiar.
Somehow, I don’t think Beth would accept that appointment (not that I know her that well). She’s young enough to want to do more and varied things with her life than bury herself in black robes for several decades.
How about Windsor County State’s Attorney Bobby Sands for a radical choice? Or a woman from Bill Sorrell’s staff of assistant attorneys general to keep the gender mix (Linda Purdy? Bridget Asay?).
Given Shummy’s propensity to include Republicans, perhaps he’ll tap Suzanne Young, now an assistant A.G. in the mental health division and formerly legal counsel to Jim Douglas – and, according to reputable sources, in support of Wisconsin Governor Scott Walker’s attempts to strip union workers of collective bargaining rights. So that stance may strike her off the list as too alienating to Labor.
History weighs against it (the legislature already foiled Howard Dean’s attempt to elevate Sorrell to SCOV – thanks for the reminder, Jack) but perhaps Shummy would clear the way for TJ Donovan to run for Sorrell’s office by appointing Bill to the High Court.
Wait, wait, what about Chittenden County Senator Sally Fox? Right party, previous judicial experience, strong credentials on families and health care.
Of these, clearly Beth Robinson is the best choice, imnsho, followed by the newly (re-) elected Sen. Fox, but Shumlin may make an unexpected appointment if Beth declines the honor.
NanuqFC
The time is always right to do the right thing. ~ Martin Luther King, Jr.