Friday, April 28, 2006

Zarella in the Dock

The nomination of Judge Peter Zarella as Chief Justice of Connecticut’s Supreme Court was seriously compromised when retiring Chief Justice William Sullivan held up the publication of a decision the release of which, Sullivan apparently thought, might harm Zarella’s prospects. The case itself meandered through the usual judicial maze before the Supreme Court rendered an en-banc decision that some case information should not be made available to the media through Freedom of Information petitions.

It should be noted that the media does have a dog in this fight. The champions of open government cannot be expected to approve final court decisions that authorize the withholding of information. In calling upon Governor Jodi Rell to nominate someone else – anyone else but Judge Zarella -- for the post of Chief Justice, a Hartford newspaper advised that the governor should promote someone who “has an unwavering commitment to open government.” This is an argument for degrading all the justices who supported the court’s majority decision – not just Zarella. And it is a somewhat contradictory position for an institution to take that would rather have its employees serve time in jail than surrender information concerning reporter’s sources and raw notes to courts that need the information to render just decisions during trials.

Big media recently lauded Senator Chris Dodd for writing a bill exempting reporters from the obligations of ordinary citizens to give relevant and necessary testimony at trial, an extraordinary privilege that should be opposed by the entire judiciary, even though their opposition would not be effective. Judges are not in the position of providing good press for senators, and professional politicians like Dodd certainly know what side their bread is buttered on. Having delivered such a boon to the media, how can anyone trust the grateful recipients of such a favor to report unfavorably on their beneficiary?

Transparency in government should be the general rule; the fear that someone somewhere may be watching is an indispensable aid to truthfulness and integrity in government. But there is no rule on earth, Cardinal John Henry Newman used to say, to which there is not at least one exception, and the quarrel between the Supreme Court majority and the media over a majority decision that Zarella had approved is a quarrel over exceptions. The court decided that some case information could not be made available to the media through petitions filed with the Freedom of Information Council; such information, the court said, could only be made available through suits grounded in First Amendment rights.

This dispute between the media and the court should have no bearing on Sullivan’s inept attempt to shove under the judicial bed Zarella’s favorable vote in a majority opinion. If it can be shown that Zarella conspired with Sullivan to conceal from the legislature important information bearing upon his nomination, his nomination should not go forward. But a favorable vote on Zarella’s nomination should not turn on a decision he supported that did not find favor with newspaper editors and journalists.

Rell’s response to Sullivan’s farcical attempt at politicking is refreshingly sane. The governor has said that Sullivan was wrong. But before Sullivan’s sins are visited upon the heads of possibly blameless jurists, shouldn’t everyone wait until the relevant authorities hear all the facts and make a just determination? Connecticut is not yet the Wonderland of Alice, and none of us is the Queen of Hearts: “First the verdict,” says the imperious queen, “then the trial.”

Those who believe that the only thing the courts have to fear about transparency is the fear of transparency itself certainly have made a strong case. Transparency allows the governed, the final architects of the shape and purpose of our government, to exercise their constitutional franchise. Shady and questionable deals usually are made in shadowy backrooms out of sight of the public. It is an open question how open the judicial department must be to satisfy the demands of democracy without eviscerating the courts and damaging other imprescriptible rights -- the right to a fair trial, for example – provided by the constitution.

A Supreme Court whose decisions are not determinative is a supreme court in name only. If the legislature were to invest the Freedom of Information Council with a power of veto over Supreme Court decisions, where would injured parties turn for justice when the council makes, as it may, a decision that unjustly injures a party involved in a dispute that the council has been called upon to adjudicate? Some Supreme Court justices worry about the answers to such question when they render decisions, and others do not.
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