Friday, June 30, 2006

Borden on the Bench

Justice Borden took an axe
And gave Zarella forty whacks

Here’s the short version of what happened.

Governor Jodi Rell wanted to appoint State Supreme Court Justice Peter Zarella as Chief Justice. The sitting Chief Justice, William Sullivan, soon to retire, thought to grease the skids for Zarella, a protégé whom he appeared to like more than, say, Justice David Borden – by withholding from publication in a law journal a decision that had produced much controversy in the media.

The court, Zarella voting with the majority, had declared that a decision made by the Freedom of Information Council ordering the release of certain information to the media could not trump a previous decision made by a superior court judge that the information need not be made public. The decision turned on the nature of the information that was to be released. The court was divided on the issue, Borden voting with minority dissenters. The high court’s decision did not please the media, friends of the Freedom of Information Council, Justice Borden or Democrats sitting on the Judiciary Committee.

Justice Borden then came to the aid of this powerful triumvirate by disclosing that Chief Justice Sullivan had purposely withheld publication of the court’s decision in an attempt to deprive congressmen of information necessary to them; a legislative committee was, after all, in the process of voting to approve Zarella as Chief Justice.

Zarella’s requested that his name be withdrawn from nomination, and this produced smiles all around. Rell was content, if not happy, that a roiling controversy had been nipped in the bud; she was already struggling in an attempt to pull her top aide, Lisa Moody, from the burning faggots. Democrats on the Judiciary Committee were happy because they had flexed their muscles and achieved the removal of a Republican gubernatorial appointment to lead the state Supreme Court. The media was happy because the judiciary branch, a creature content to work in the shadows, had momentarily emerged into the sunshine. And Borden was happy because he had replaced Sullivan as Chief Justice, if only temporarily.

In fact, Borden appeared to be the major winner in this judicial taffy-pull. He was widely celebrated in the media both as a friend of freedom of information and a brilliant jurist who might possibly make a fine chief justice, now that Zarella had been put out of the way. The awkward controversy might have ended right there, had not Democrat legislators on the Judiciary Committee made arrangements for a hearing. Zarella agreed to testify, but the redoubtable Sullivan balked, wherefore the solons on the Judiciary Committee issued a subpoena to compel the former Chief Justice’s testimony.

And here the carefully crafted ethical posturing of the usual culprits suffered a serious meltdown; for acting Chief Justice Borden vigorously supported Sullivan in resisting the subpoena. Borden and Sullivan’s lawyers argued that the subpoena violated the state constitution’s separation of powers doctrine. To no one’s surprise, a superior court justice soon decided in their favor.

The moral to this tangled tale may be: Let no one attempt to snatch victory from the jaws of Justice Borden. Should the sitting Chief Justice be nominated by Rell to a permanent position, he does not intend to preside over the dismantling of the Supreme Court’s authority. The decisions of the superior and state supreme courts would be effectively nullified if other inferior judges of facts – Freedom of Information Commissions, editorial boards of powerful newspapers or even bumptious congressional committees – were permitted to trump judicial decisions. This rational ran like a golden thread through the decision that had caused all the difficulties for Zarella.

We are now back to square one, with acting Chief Justice Borden desperately maintaining that the exercise of legislative oversight is unconstitutional -- except when it occurs in venues permitted by judges.

The part played by Borden in the tale proves that there is more than one way to skin a gubernatorial nominee and still come away from it bathed in the glow of ethical propriety and smelling like a Chief Justice in full flower.

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