Sat 18 Aug 2007
Today’s Courant has an important article about Judge John R. Downey, who has been nominated by Governor Rell to serve on the Connecticut Appellate Court. You may have read recently that Judge Downey, who awaits confirmation by the legislature, was criticized for having opened a session of his court with a “tribute” to the late Senator Strom Thurmond. Downey bragged about having known Thurmond while a law student in the 1970’s – a time before Thurmond’s attempt to rehabilitate his public image as an arch-racist and segregationist. Some members of the Judiciary Committee, which is charged with conducting a confirmaton hearing for Judge Downey on Tuesday, have criticized him for his praise of Thurmond.
Of course, the judge’s supporters have claimed that his opinion about whether Thurmond was a great man or a great bigot is not relevant to his nomination. Many people would disagree and question whether a judge who praised one of the icons of racist bigotry in the United States could possibly be expected to render justice for people of color in his court.
However, in the latest revelation about Judge Downey it is not merely his opinions that are at issue but whether those opinions interfere with his ability to apply established Connecticut law.
Lynne Tuohy’s article in the Courant describes how Judge Downey conducted himself in a workers compensation case that was before him. The case involved a claim by the estate of a man who had been killed in an employment-related accident.
It seems that upon hearing that the name of the deceased was Juan Rocado Brito, Judge Downey immediately asked the lawyer bringing the case whether or not Mr. Brito was “illegal.” When the lawyer responded by saying that it was not an issue in the case, Judge Downey is quoted as saying “Well, it might be an issue in Judge Downey’s courtroom . . . because I think citizens and people here validly have a right to use the court system and those who are here illegally do not.”
This opinion of Judge Downey’s, expressed on the record in a case before him, is not just bigoted . . . and it’s not just debatable. It’s contrary to the established law of the State of Connecticut, as handed down by the Connecticut Supreme Court. In the 1998 case Dowling v. Slotnik, Connecticut’s highest court expressly stated that “illegal aliens” (their term) are eligible to seek and receive workers compensation benefits, and that federal statutes making it unlawful to hire “illegal aliens” do not preempt (that is, do not overrule or take precedence over) Connecticut law in this area.
It is one thing for a judge to have what you or I may consider a bad opinion about a controversial topic. It is another for a judge to use his bench and a public courtroom to praise a man widely known as a bigot. And it is yet another and even more serious thing for a judge to express on the record in his courtroom a bigoted opinion that is squarely contrary to the law and to suggest that he intends to be bound by his bigotry and not by the law.
If there had been any doubt before, this latest revelation about Judge Downey reveals that he is utterly unsuited to sit on the bench of the Connecticut Appellate Court. The Judiciary Committee should do its duty and so state.
Peter Goselin
National Lawyers Guild - Connecticut Chapter
August 19th, 2007 at 7:23 pm
[…] Indeed. Peter at Undercurrents has more. Powered by Gregarious (36) […]
August 21st, 2007 at 12:27 pm
On reviewing my comments and getting input from colleagues, I thought it might be a good idea to point out that the question of whether non-citizens, including those who are in the U.S. without permission, have the right to access U.S. and state courts isn’t a new one or an undecided one and that it has been asked and answered in a much broader context than Connecticut workers compensation law.
The United States Supreme Court answered the question in Plyler v. Doe, and held that a Texas state law that denied access to public schools to the children of undocumented immigrants violated the Fifth and Fourteenth Amendments to the Constitution. Here is a quote from that decision:
The Fourteenth Amendment provides that “[no] State shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” [Emphasis added]. Appellants argue at the outset that undocumented aliens, because of their immigration status, are not “persons within the jurisdiction of the State of Texas, and that they therefore have no right to the equal protection of Texas law. We reject this argument. Whatever his status under the immigration laws, an alien is surely a “person” in any ordinary sense of the word. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as “persons” guaranteed due process of law by the Fifth and Fourteenth Amendments. Shaughnessy v. Mezei, 345 U.S. 206, 212 (1953); Wong Wing v. United States, 163 U.S. 228, 238 (1896); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886). Indeed, we have clearly held that the Fifth Amendment protects aliens whose presence in this country is unlawful from invidious discrimination by the Federal Government. Mathews v. Diaz, 426 U.S. 67, 77 (1976).
Plyler v. Doe, 457 U.S. 202, 210 (1982).
August 21st, 2007 at 8:18 pm
Judge Downey’s remarks about Strom Thurmond and his questioning the legal status of a person in his courtroom have become today’s headlines from his confirmation hearing. But, I would hope that his record in family court of protecting children from abuse will be the focal point in the future. Isn’t child abuse a more important issue than immigration? Don’t we want our Judges in Connecticut to be hard on child abusers and criminals in general? I would say yes, especially in light of what just happened in Cheshire? We need more Judges like Downey who I know firsthand are willing to ACT to protect our children.
August 21st, 2007 at 11:40 pm
This evening — August 21 — the Judiciary Committee of the Connecticut General Assembly announced that it would continue to another date its hearings on the confirmation of Judge Downey to the Connecticut Appellate Court. The hearing will resume “before September 17.”
An article in the online edition of the Courant provided information about further instances of Judge Downey’s anti-immigrant remarks.
http://www.courant.com/news/local/statewire/hc-21195204.apds.m0144.bc-ct–appeaug21,0,4931116.story
It appears that Judge Downey presents a problem for the legislature. Their inclination will be to go along to get along. They don’t want to seriously challenge Judge Downey or deny him an appointment. Yet they are faced with the uncomfortable prospect of “promoting” a judge whose remarks and actions in open court reflect his belief that undocumented immigrants have no legal rights.
These remarks and actions are so blatant that they cannot be passed off as merely “an opinion.” Indeed, they go to the heart of the question of Downey’s confirmation and his fitness to serve as an appellate judge because his statements appear to be a willful rejection of more than a century of U.S. Supreme Court precedent.
Today’s revelations about Judge Downey’s anti-immigrant remarks have upped the ante but may not be enough to force the Judiciary Committee to deny him an appointment. Business as usual is a powerful force in any political establishment. Keeping a bigot off of the appellate court will take an intervention: it’s time for the people of Connecticut to have a say.
When the Judiciary Committee reconvenes, it is urgent that there be an organized response to remind the lawmakers of their duty. They are charged with responsibility for ensuring that judicial appointments go to people who are qualified to serve as judges. Judge Downey’s statements show that he is not qualified and must be rejected.
Immigrant advocates should be prepared to turn out in force for the next hearing date to protest Judge Downey’s bigotry.
August 22nd, 2007 at 9:04 am
Tom sez: But, I would hope that his record in family court of protecting children from abuse will be the focal point in the future. Isn’t child abuse a more important issue than immigration?
Tom, from the point of view of how or whether the legal system works there simply cannot be a more important issue than access to the courts. And as someone who wants to see judges actively protect the interests of children, you know that as well as I do.
It wasn’t that many years ago that serious issues of child abuse were routinely ignored by the law enforcement and judicial system. These were things that just weren’t talked about, and boys and girls who had been physically, emotionally and/or sexually abused by adults were invisible. Only by consciousness raising and political pressure did child advocates begin to force the judiciary to take these issues seriously.
When someone is being considered for a judicial appointment — and especially when he or she is being considered for appointment to an appeals-level court — we simply can’t allow them to have the kind of huge blind-spots that Judge Downey has. You would be outraged if a nominee to the appellate court had a great track record on treating people of color fairly but was known to have made statements minimizing the importance of protecting children from abuse. You should be equally outraged that Judge Downey, though he may be an effective advocate for the safety of children, has made it clear that he will disregard the law when it comes to protecting the rights of Latinos who come into his court looking for justice.
Or to put it another way, please consider this. There is strong evidence that Judge Downey believes — against more than a century of judicial precedents — that immigrants who are in the United States unlawfully are not entitled to come into his court to get justice. Those immigrants have children too, and their children are as entitled to the protections of the law as yours or mine. If Judge Downey is appointed, what message will that send to the immigrant mother or father who fears that a neighbor is abusing their child? What message will it send to sexual predators who are calculating which children are vulnerable because the law doesn’t care about their welfare?
You can’t separate people into categories and say “protect children but not immigrants.” Immigrants, regardless of their legal status, are human beings and they and their children deserve the same protections of the law as you and I.
August 22nd, 2007 at 12:15 pm
Judicial temperament should be an important consideration when contemplating appointments to the courts, especially to an appellate court. It’s one thing for Judge Downey to harbor private feelings about someone like Strom Thurmond. It something else entirely when Downey used his important position as a Connecticut judge to lionize someone who spent most of his life in opposition to everything our state has stood for, i.e. equality under the law. Need I remind people that too many of our forefathers died in a Civil War attesting that the legacy of a political throwback like Strom Thurmond was seriously wrong and a national embarrassment? It says much about Downey that he saw fit to praise Thurmond from the bench in his official capacity. His judgment is flawed and inconsistent with the traditions and sentiment of our state. On that basis alone, he should not be promoted to the Appellate Court.
August 23rd, 2007 at 8:44 am
Judge Downey has asked Governor Rell to withdraw his nomination!
Now the only question is whether the Judiciary Committee will make sure that he is not reappointed!
August 23rd, 2007 at 12:40 pm
Leon - basing a large portion of your argument around the Strom Thurmond comments is interesting to me, since your method of personal evaluation apparently treats people as concrete slabs, incapable of change. What, then, do you make of Sen. Robert Byrd (D – VW), a former member of the KKK? What about those that support, endorse or admire him today? 10 years ago? 20 years ago? Are they all sentenced to be forever bigots in your book?
Peter - I take issue with your characterization of Judge Downey as “anti-immigrant” or anti-Latino. The central issue is not “immigration,” broadly defined. It is *illegal* immigration. Surely, you are aware of the difference between illegal and legal immigration, even as you try to blur the distinction a little bit more in each of your ramblings.
Furthermore, branding Judge Downey a bigot calls the entirety of your legal discussion, as well as your ability to reason logically, into serious question. I have never read such an idiotic statement before, and it saddens me to read it here.
Finally, your statement regarding everyone’s protection under the “law” is true, to the extent there is universal law. A country’s citizens are bound under the law. Are you bound to the laws of France? What about Syria? Transgressions of citizens against non-citizens will be treated under the law, as it involves a citizen. Leaping to the hyberbole that Judge Downey believes citizens have carte blanche to abuse non-citizens is a specious and pathetic attempt at fear mongering. How many cases has Judge Downey presided over, since the case in question, involving a member of the Latino community or a party with questionable resident status? Do some work before you leap to such far reaching claims with self-granted authority.
August 23rd, 2007 at 2:34 pm
Mordred,
In all fairness to me, if someone claims with regard to something I have written that “I have never read such an idiotic statement before,” then I find it hard to take them too seriously. While my opinions may at times be idiotic, I doubt that any well-read person can honestly say they are the most idiotic statements they have ever read. So either you are deliberately exaggerating or are not very well read. I am giving you the benefit of the doubt and will assume that you are only exaggerating.
That said, and even though I heartily disagree with each of the points that you have raised, let me respond to them as respectfully as I can.
First, and though it was not addressed to me, regarding Judge Downey’s ability to change. I find it very interesting that this is something that he relied upon first to defend Strom Thurmond and then again to defend himself (read Judge Downey’s letter to Governor Rell asking that his name be withdrawn for consideration.
I believe that Judge Downey now knows a good deal more about the constitutional rights of immigrants than he did before these hearings. That’s all to the good, since he continues to sit on the bench in Superior Court. But I am naturally suspicious of someone who suddenly declares himself enlightened when to say otherwise would cost him something of value.
It also concerns me that early in Judge Downey’s hearings he made statements indicating that he had never allowed his “academic debate” about access to the courts to interfere with an actual ruling. After he made that statement, Phil Berns, an immigration lawyer from Stamford, was able to identify two divorce cases that he had before Judge Downey in which the judge made production of a green card a condition for the case to go forward. Not only was Judge Downey 200% wrong on the law in these cases, but they show that his statements to the Judiciary Committee were false. I hope you will agree with me that for a sitting judge to lie about his views to the Judiciary Committee considering his appointment to the Appellate Court lends serious doubt to his qualifications for the job.
Second, you take issue with my characterization of Judge Downey’s views as anti-immigrant and anti-Latino. You state that the “central issue” is actually “illegal immigration” and that I am blurring the lines between the two. I think you are mistaken.
As you know from having read my post and comments, it is well-established law that a person’s immigration status (that is, the fact that she is an immigrant or whether she is here with or without authorization) is not relevant to that person’s right of access to the courts. So while the “central issue” in the world of politics may be “illegal immigration,” in the world of constitutional law and Supreme Court precedent the distinction is not a meaningful one. The cases I have previously discussed (as well as an interpretation of the plain language of the U.S. Constitution and the Connecticut Constitution) do not revolve around one’s citizenship but upon the meaning of the word “person.”
For a judge to challenge someone’s right to access the courts based upon citizenship is simply a wrong statement of the law. Period. End of story. Judge Downey wanted to make it an issue that people who came into his courts with Latino surnames might be immigrants…the law does not recognize the distinction that he wanted to make. I stand by my description of Judge Downey’s views as anti-immigrant.
As for his views being anti-Latino, well just take a look at the cases that were discussed in his hearing. In each one of them the only reason that Judge Downey raised the question of citizenship status was because the party had a Latino-sounding surname. The day that you find evidence that Judge Downey also challenged the citizenship of a plaintiff named O’Reilly or Brzenski is the day that you can claim that his remarks were not motivated by anti-Latino bias.
I am sorry if you object to my use of the word bigot. One definition of that term that I was immediately able to locate is “Person extremely intolerant of others and irrespective of reasoning.” Judge Downey, who the evidence shows used his position of power to single out Latinos and challenge their citizenship and their right to access “his” court even though any educated jurist would recognize that such actions are improper, appears to fit that definition to the proverbial “t.”
Finally, we come to my discussion of equal protection under the law. On this point, I propose that — well read though I have assumed that you are — you re-read the Fourteenth Amendment to the United States Constitution. It says, in part, that “no state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” This is commonly referred to as the Equal Protection Clause of the Fourteenth Amendment. When I referred to the right to equal protection of the law, I assumed that you, gentle reader, would know that this was my point of reference. If not, then I suggest the Wikipedia article on the Equal Protection Clause. In this context it is clear that I am not discussing equal protection under the law of France or Syria but under the United States Constitution (and the analogous provision of the Connecticut Constitution).
Interestingly, the whole point of the Fourteenth Amendment and indeed of the whole Bill of Rights is not that (as you say) “A country’s citizens are bound under the law.” Rather, these amendments were adopted so that a country (more precisely a government) would be bound under the law. The cases interpreting the Equal Protection Clause as well as other parts of the Bill of Rights, have made it crystal clear that these restrictions bind the United States government and the governments of the individual states in their actions toward “persons” or “people” and not just toward citizens.
August 23rd, 2007 at 2:40 pm
:) Good to keep a sense of humor. Clearly, Peter, as idiotic as you are sometimes, you’ve never quite outdone George W. Bush. I mean, you at least write (and presumably think and speak) in complete sentences using real words.
August 23rd, 2007 at 2:44 pm
I also thought that readers of these comments might find this statement of interest. It discusses the scope of the Equal Protection Clause of the Fourteenth Amendment:
“These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws.”
The source? Justice Hopkins’ decision in Yick Wo v. Hopkins, 118 U.S. 356 (1886). Yes, that’s 1886. More than one hundred and twenty years ago.
August 23rd, 2007 at 2:45 pm
High praise indeed, Kerri. I’ll be sure and list you as a reference on my resume.
August 23rd, 2007 at 2:49 pm
No problem!
If anyone is interested in hearing truly idiotic statements, watch the Daily Show, Colbert Report, or Olbermann’s Countdown. They collect the most moronic things said and done–usually by politicians–and air it for anyone with cable to see.
August 26th, 2007 at 7:12 pm
I happen to know John Downey personally, and have known him for 53 years. He is a very good man - generous, kind, loving, funny, intelligent, and a loyal husband, father, uncle and brother.
Regarding the claims that he is biggoted towards Latinos, I have seen him for years show real compassion and generosity to a Latino family with whom he is closely associated. During the hearing, a committee member who presented a case before John in court stated that John had shown courtesy and warmth towards his Latino client.
Like every human being, we sometimes show our best selves and sometimes do not, and we all have room for growth. John is not perfect. He made some mistakes, for which he has apologized. He also said his opinion has evolved. These statements show willingness to admit error and to change.
I am hopeful that members of the press and public will give John a chance to reflect that growth in his behavior as a judge.