[Congressional Record Volume 156, Number 172 (Tuesday, December 21, 2010)]
[Senate]
[Pages S10921-S10923]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    NOMINATION OF ROBERT N. CHATIGNY

  Mr. DODD. Madam President, I rise today to express my strong support 
for the nomination of Judge Robert Chatigny to serve on the U.S. Court 
of Appeals for the Second Circuit. I would like to thank my dear friend 
and colleague, Chairman Leahy, for his efforts on this nomination. 
Chairman Leahy, and his staff, does an outstanding job in seeking to 
ensure that the Federal courts function as our Constitution prescribes. 
I applaud him for his work and his commitment to the rule of law.
  Judge Chatigny was first nominated to the Second Circuit last year, 
but after a sustained and, in my view, totally unwarranted attack on 
him by some, my colleagues on the other side refused to grant consent 
to allow his nomination to remain pending in the Senate. As a result, 
under rule 31, his nomination, along with 12 others, including 4 other 
judicial nominees, was returned to the President on August 5, prior to 
the August recess.
  While I was extremely disappointed by this development, I am pleased 
that President Obama decided to renominate Judge Chatigny to this 
position. Judge Chatigny is an individual of outstanding character, 
keen intellect, and extensive judicial experience. I can think of few 
jurists more qualified to serve on the Second Circuit than he, and I 
congratulate President Obama on making such an excellent selection to 
fill this vacancy.
  For 16 years, Robert Chatigny has been a Federal judge in 
Connecticut, serving as chief judge of the District of Connecticut from 
2003 to 2009. In addition to ruling on a wide variety of cases, Judge 
Chatigny has earned a reputation for integrity, intelligence, and 
strict adherence to the rule of law.
  I am pleased that Judge Chatigny has received the support of numerous 
former Federal prosecutors in Connecticut who understand the importance 
of upholding the rule of law and vouch for his character and his 
qualifications. Let me quote from a letter to the Judiciary Committee 
from three former U.S. Attorneys, each appointed by a Republican 
President:

       We believe that he is a fair minded and impartial judge, 
     who has the appropriate fitness and temperament for the 
     appellate court.

  In addition, the Judiciary Committee has also received a letter 
signed by 17 former assistant U.S. attorneys currently practicing law 
in Connecticut, in which they express their confidence that he will be 
``unbiased, compassionate, and temperate.''
  This support demonstrates the high regard in which Judge Chatigny is 
held by the members of the legal community in Connecticut that know him 
best. In addition to the praise from the Connecticut Bar, Judge 
Chatigny has been unanimously rated ``well qualified'' by the American 
Bar Association.
  Judge Chatigny's legal experience prior to his appointment reveals a 
rich understanding of--and deep commitment to--the American legal 
system. After graduating from Brown University and the Georgetown 
University Law Center, he served as a clerk to three Federal judges, 
including judges Jon Newman and Jose Cabranes. Prior to his service on 
the court, he built an excellent reputation in private practice, first 
as an associate here in Washington, before returning to private 
practice in Hartford for nearly a decade.
  In addition, Judge Chatigny has devoted substantial time and effort 
to improving the legal profession. When the Governor of Connecticut 
sought experienced and knowledgeable public servants to help make 
better public policy, Judge Chatigny was an easy choice, serving on 
both the State Judicial Selection Commission and the State Commission 
on Prison and Jail Overcrowding. In addition, he has served in various 
roles with the Connecticut Bar Association, as well as being an advisor 
to the congressionally created Federal Courts Study Committee.
  Unfortunately, Judge Chatigny has become the target of totally unjust 
attacks that threaten not only to defeat his nomination but also send a 
chilling

[[Page S10922]]

message that will endanger the independence of all Federal judges.
  One may wonder why the nomination of a judge so well qualified and so 
highly regarded as Judge Chatigny has drawn any opposition at all from 
my colleagues on the other side of the aisle. The answer lies primarily 
in Judge Chatigny's role in the appeal of the first death penalty case 
in Connecticut in 40 years. Here are the facts.
  Michael Ross raped and murdered eight women. His crimes were heinous 
and inhuman. He was convicted in the State courts of Connecticut and 
sentenced to death. His defense of insanity, although seriously 
contested at trial on the basis of conflicting psychiatric testimony, 
was rejected.
  On January 21, 2005, 5 days before the scheduled execution, a public 
defender filed a petition for a writ of habeas corpus in the 
Connecticut Federal district court that came before Judge Chatigny. The 
petition presented substantial evidence challenging Ross's competency, 
alleging that under the U.S. Supreme Court's 1996 decision in Rees v. 
Payton, Ross was not competent to waive legal challenges to his death 
sentence, and that his execution would violate the 5th, 6th, 8th, and 
14th amendments.
  Three days later, on January 24, Judge Chatigny conducted a hearing 
in the habeas case and heard testimony from a psychiatrist supporting 
the claim of incompetency. The judge issued a stay of execution. The 
next day, January 25, the Second Circuit Court of Appeals unanimously 
denied the State's motion to vacate Judge Chatigny's stay and dismissed 
the State's appeal from the stay order. Two days later, on January 27, 
the U.S. Supreme Court, by a vote of 5 to 4, vacated the stay of 
execution.
  Later that same day, Judge Chatigny received new evidence bearing on 
Ross's competency, and, mindful that he had been instructed not to 
enter any order delaying the execution, nevertheless felt it his duty 
to alert all counsel to the new evidence. He therefore faxed it to all 
counsel, and convened a telephone conference to discuss the evidence.
  The next day, January 28, Judge Chatigny convened another telephone 
conference with all counsel and learned of the existence of additional 
new evidence bearing on the defendant's mental competency.
  Shortly after midnight, the State agreed to postpone the execution 
until Monday, January 31, at 9 p.m. Later that morning, on January 29, 
defense counsel received information that the psychiatrist who had 
testified for the State might now have a different opinion on the issue 
of mental competency based on the new evidence.
  Two days later, on January 31, defense counsel filed a motion in 
State court to stay the execution. The State did not oppose the motion, 
the motion was granted, and the death warrant expired.
  On February 10, the State trial judge ordered a new competency 
hearing, which was conducted in the State court for 6 days in early 
April. On April 22, the State trial judge issued a decision finding 
that Ross was competent, and on May 10, the Connecticut Supreme Court 
affirmed. Three days after this final ruling was handed down, Michael 
Ross was executed.
  Thereafter, a State prosecutor filed a complaint against Judge 
Chatigny alleging that his actions in the Ross case constituted 
judicial misconduct. The chief judge of the Second Circuit convened a 
special three-judge panel to investigate the allegations. The panel 
included former U.S. Attorney General Michael Mukasey, who was then 
chief judge of the U.S. District Court in Manhattan. The panel 
unanimously concluded that no judicial misconduct had occurred, and 
that ruling was unanimously adopted by the Judicial Council of the 
Second Circuit.
  Despite the unanimous conclusion of these distinguished jurists that 
Judge Chatigny did nothing improper in his handling of the Ross case, 
it has become a focal point for objections to his confirmation. Some 
have argued that the judge should not have intervened, even briefly, to 
delay the execution of such an evil person as Michael Ross, an admitted 
killer of 8 young women.
  I would, however, invite my colleagues to consider carefully the 
implications of that criticism. Here was a district judge confronted 
with a substantial claim, in a properly presented petition for a writ 
of habeas corpus, that new evidence put in doubt the competency of a 
defendant about to be executed.
  The judge had two choices: he could turn his back on the matter and 
let the execution proceed without any examination of the new evidence, 
or he could insist that constitutional standards be followed and the 
new evidence be considered so that the execution, if and when it 
occurred, would be carried out in accordance with constitutional 
requirements.
  Turning his back on the case would have been the easier course. 
Accepting the challenge to consider the habeas corpus petition, I 
believe, took considerable courage. The judge acted in conformity with 
his oath of office, which obliges him to uphold the Constitution of the 
United States. And for that, he is being savagely attacked.
  Some critics of Judge Chatigny's nomination point out that the stay 
of execution issued by the judge was later vacated by the U.S. Supreme 
Court by a vote of 5 to 4. And, of course, that 5 to 4 majority 
ultimately prevailed.
  But it must be noted, in assessing Judge Chatigny's decision to issue 
the stay, that of the 13 judges that reviewed the matter--1 district 
judge, 3 Circuit Judges, and 9 Supreme Court Justices--only 5 thought 
the stay should not have been issued, and 8 thought it was proper.
  Even more significant is the fact that once the new evidence was 
brought to the attention of the counsel for the State, the State 
elected not to oppose a new court hearing so that the new evidence 
could be fairly considered. The new evidence was of sufficient value to 
require 6 days of hearings in the State court.
  Ultimately, the new evidence did not change the outcome of the case, 
and Ross was executed. But if Judge Chatigny had not intervened, an 
execution would have occurred without the 6-day hearing that the State 
court found necessary to determine the defendant's competency, and the 
assurance of compliance with constitutional requirements would have 
been lost.
  After a call for an investigation by some legislators in Connecticut 
was made, the Bar Association's president publicly stated that ``no one 
should want decisions of life or death made without consideration of 
all relevant facts and circumstances,'' and that the attacks on the 
judge threatened to ``undermine'' the independence of the judiciary. 
Judge Chatigny's handling of the Ross case was praised by both the 
Hartford Courant and the Connecticut Law Tribune.
  If Judge Chatigny is to be attacked for performing his constitutional 
function as he saw it, what message does that send to other judges when 
confronted with constitutional claims in cases that understandably 
arouse public passions?
  Let me respond to one other criticism that has been made concerning 
the Ross case. The critics have quoted Judge Chatigny as saying that 
Ross should never have been convicted. Their quotation is a serious 
distortion of what the judge said.
  Speaking with reference to the evidence of Ross's insanity defense, 
the judge said, expressing the traditional standard courts use in 
determining whether there is sufficient evidence to present an issue to 
the jury, that ``looking at the record in a light most favorable to Mr. 
Ross, he never should have been convicted.'' Unfortunately, the critics 
have left out the important first half of that statement.
  Let me also briefly mention the concerns raised by some about Judge 
Chatigny's treatment of Michael Ross's attorney in regards to his law 
license. I think this criticism does not stand up to close scrutiny.
  It is, of course, true that Judge Chatigny had a heated discussion 
with the Ross's lawyer regarding his client's competence. Judge 
Chatigny believed strongly that a state court in Connecticut should be 
given the opportunity to consider new evidence of Ross's competence and 
tried to convince the attorney of this.
  There is no doubt that the exchange between Judge Chatigny and the 
defense lawyer was intense. However, as the Judicial Council of the 
Second Circuit found, there was no misconduct in this episode. In fact, 
the special committee's report stated:

       The judge was clearly concerned that [the defense lawyer's] 
     reluctance to engage the

[[Page S10923]]

     court in the question of Ross's competence  . . . might cause 
     an unconstitutional execution. It is clear the judge's 
     concern was to repair what he perceived as a breakdown in the 
     adversarial process, resulting from an attorney's insistence 
     on adhering to his client's expressed desire to waive 
     judicial review and consent to his execution, in spite of 
     indications that the client might be without competence to 
     make such a waiver. The judge's perception of the need for 
     remedial action in his communications with the attorney was 
     reasonable. While his words were strong, when properly 
     understood they were not unreasonable.

  Further, who among us in public life during debates on contentious 
issues has never said anything that we would perhaps not repeat? The 
next business day after this episode, Judge Chatigny sought out the 
defense lawyer and apologized for his actions. He recognized that his 
words were ``excessive'' and at the first chance available sought to 
apologize for them. I think this shows exactly the sort of humble and 
self-examining personality that we need more of on the court.
  But perhaps most importantly, Mr. President, one verbal exchange 
between a judge and counsel, in the middle of a highly contentious and 
emotional court case does not shed light on the entire arc of a judge's 
career. As demonstrated from the record and the support he has received 
in Connecticut, this episode is an aberration and one not likely to be 
repeated. We should not unduly punish someone with an outstanding 
record such as Judge Chatigny because of one heated exchange. What type 
of judicial standard would we be asking of those who aspire to the 
bench?
  The critics have also said that the complete exoneration of Judge 
Chatigny on the misconduct complaint has little, if any, bearing on 
whether he should be confirmed for the court of appeals. Yet they 
persist in claiming that the Judge did something improper when the 
claim of improper conduct was totally rejected.
  On this last point, I believe it is also worth reiterating that one 
of the judges who served on that panel, Michael Mukasey, also served as 
U.S. attorney general during the waning years of the Bush 
administration.
  But Michael Mukasey has done more than simply reject a misconduct 
complaint. Once the nomination of Judge Chatigny was made, Michael 
Mukasey let it be known that he supported the confirmation of Judge 
Chatigny for a seat on the court of appeals. Can anyone seriously 
believe that a former U.S. attorney general would support a nominee to 
the Federal bench who was not unquestionably deserving of confirmation?
  And Michael Mukasey's support of Judge Chatigny's nomination does not 
stand alone. As I mentioned earlier, three former U.S. attorneys 
appointed by Republican Presidents, the prosecutors most familiar with 
Judge Chatigny's record, have publicly informed the Senate Judiciary 
Committee that they strongly support his confirmation for the court of 
appeals, as have 17 former assistant U.S. attorneys.
  One other criticism of Judge Chatigny also must be addressed. 
Individuals have attacked Judge Chatigny because in some instances, he 
imposed a sentence below the sentencing guidelines in certain cases.
  What his detractors ignore is that Judge Chatigny has also imposed 
sentences at or above the top of the guidelines' range and that, 
according to Sentencing Commission statistics, Judge Chatigny's 
sentences are well within the mainstream of sentences of all the judges 
in his district.
  Indeed, the best commentary on Judge Chatigny's sentences in criminal 
cases is the fact that in the 16 years he has been a district judge, 
Federal prosecutors have not sought to appeal even one of these 
decisions. Let me repeat that: in 16 years as a Federal judge, 
prosecutors have never appealed one of Judge Chatigny's sentences.
  I have served in this body for nearly 30 years. I am extremely proud 
of this institution and believe that it plays a critical role in our 
republic. One of the most important functions we have is to vote on 
nominees to the executive and judicial branches of our government.
  It saddens me to note that this body has let partisan politics and 
delaying tactics interfere with our constitutional responsibility to 
provide advice and consent on the President's nominees. Unfortunately, 
Judge Chatigny is not the only eminently qualified judicial nominee to 
face this challenge.
  As of November 29, the Senate had only confirmed 41 of President 
Obama's Federal circuit and district court nominees so far this 
Congress. By contrast, during the first Congress of the George W. Bush 
administration, the Senate, which at that time was controlled by 
Democrats, confirmed 100 of that President Bush's nominees to the 
Federal bench.
  In addition, there have been repeated roadblocks to the consideration 
of numerous well-qualified nominees to critically important posts 
within the executive branch. The Federal Government has an immense 
amount of work to do, and obstructionist tactics have only made that 
harder.
  I am convinced that this Judge deserves to be confirmed. He has 
outstanding qualifications and an outstanding record. No one, even his 
critics, doubts either his qualifications or his record. I believe he 
is being opposed because he acted with great courage to live up to his 
oath of office and uphold constitutional standards in one widely 
publicized case involving a despicable murderer.
  Would that all judges display that kind of courage when put to a 
similar test.
  Let me conclude with one further point. I recognize that some of my 
colleagues believe that Judge Chatigny's handling of the Ross case 
merits criticism. I believe, on the contrary, that his handling of the 
case was a courageous defense of constitutional requirements, as do 
many others, including experienced Federal prosecutors from both 
political parties.
  But let us assume, for a moment, that the criticism is valid. What I 
would then ask this body to consider is this: is the criticism of the 
handling of one case out of the thousands over which Judge Chatigny has 
presided in 16 years as an outstanding U.S. district judge a sufficient 
reason to oppose his confirmation for the court of appeals?
  Have we, as Senators, permitted the President's selection of a well 
qualified judge with 16 years of outstanding judicial service to be 
thwarted because in the hours before a scheduled execution, the first 
in Connecticut in 40 years, this judge thought it was his duty to make 
sure that constitutional standards, as he understood them, required him 
to act, not to overturn a conviction, not to overturn a death sentence, 
but simply to make sure that new evidence bearing on the defendant's 
mental competence was fairly considered?
  It goes without saying that I am very disappointed the Senate will 
not be voting on this nomination before the end of the 111th Congress. 
Judge Chatigny is superbly qualified for a seat on the Second Circuit, 
and I believe the Senate has made a serious mistake by not confirming 
him.

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