The Glover Autopsy

Mark Pazniokas of CTMirror tells us “Sandra Slack Glover withdrew Friday as Gov. Ned Lamont’s nominee for the state Supreme Court, unable to overcome legislative questions about her commitment to upholding Connecticut’s strong reproductive rights laws.

“Glover, 52, the appellate chief for the U.S. Attorney of Connecticut, was wounded by a letter she signed in 2017 on behalf of Amy Coney Barrett, the conservative destined to play a pivotal role in ending a woman’s federal right to an abortion.”

Political obituaries are now rolling in.

Courant columnist Kevin Rennie reminds us following Glover’s withdrawal that both Governor Ned Lamont and Glover are new to the serpentine ways of Connecticut politics. If either had been more experienced politically, the nomination might have been saved. During her confirmation testimony before the state Judiciary Committee, Glover had set off too many political tripwires.

Glover had signed the usual letter of recommendation for Amy Coney Barrett when Barrett had applied for a position as a Superior Court Judge. Years later, Barrett had been successfully installed on the U.S. Supreme Court as an Associated Justice, and still later the Court had reversed its decision in Roe v. Wade.

Therefore… therefore what?

Glover’s much anticipated withdrawal as a nominee for the Superior Court position has therefore saved members of the State Judiciary Committee from publically answering the above knotty question.

Is it possible that the political tripwires, rather than the independent judgment of nominees to various court positions, are the problems?

On the one hand, we expect judges to render their best, disinterested judgment on cases before them – not their latent political prejudices. The separation of powers doctrine has taught us over the years that the legislative, executive and judicial branches are engaged in different pursuits and political missions. Over the past few decades, political mines and tripwires have been randomly strewn in the path of judicial nominees installed by politicians wise in the serpentine ways of politics.

Perhaps the best political mine-planter in recent memory was former U.S. Senator Ted Kennedy, the “liberal lion of the Senate.” His political objection to the Supreme Court nomination of Judge Robert Bork still rumbles through the years: “Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens.”

The highly hyperbolic concerns mentioned by Kennedy need not trouble legislators who have not committed themselves to using the judicial system to accomplish their own political ends. But the more often cowardly legislators rent out to courts their own legislative responsibilities, the more frequently and deeply are the courts politicized.

It was to prevent the political pollution of courts that the Supreme Court found in Dobbs v. Jackson that decisions on abortion should be made by state legislatures rather than judges because, the court said, such decisions are, by their very nature, political.  Dobbs answers the question – who should decide abortion issues? – and leaves to legitimate legislative deciders what should be decided. Naturally, the court reserves to itself the right to declare certain legislative measures unconstitutional – when rare and exceptional cases are, in fact, unconstitutional.

The Supreme Court – and perhaps appellate courts – are less likely after Dobbs to declare unconstitutional state legislative decisions rendered on the matter of abortion. It is no hyperbole to say that Connecticut is perhaps the most pro-abortion state in the nation. The solution to that problem, should voters decide it is a problem, is to vote out of office, pro-abortion extremist politicians –essentially a political not a judicial remedy.

Everyone will agree that it is not possible to extend infinitely a right in one direction that will not, sooner or later, collide with a competing right, and the courts must adjudicate those rights. But Dobbs stands a caution that jurists should not be legislating from the bench. To do so is to invite disdain from a general population and violate both the separation of powers doctrine and a constitutional arrangement that is the best defense against a corrupt autocracy.