All of Governor Malloy’s nominees for new state judgeships sailed through the legislative approval process yesterday except for Shelley Marcus, a former Branford town counsel, whose selection to the Superior Court bench was up in the air all day.
By nightfall, the governor’s nomination of Marcus, 61, squeaked by the state House of Representatives by a vote of 79 to 54 with 18 absent. To get her judgeship she needed 67 votes. And by 7:30 p m. she made it. The Senate vote was not close: 31 to 4.
In a highly unusual display of bipartisan opposition to a gubernatorial nominee, legislators slammed Marcus for alleged incompetence as well as for what one lawmaker called “by far the worst performance I have seen” at a confirmation hearing. The governor and other leading Democrats stuck behind the politically connected nominee. Supporters defended her as competent for the job and the victim of a local town political vendetta.
Branford State Rep. Lonnie Reed voted against her while Pat Widlitz, who represents two districts in Branford, voted for her. Branford state Sen. Ed Meyer voted against her. Only Meyer publicly discussed his views on the Senate floor. Democratic state Rep. Roland Lemar of New Haven also voted no.
The votes for 14 Superior Court judgeships began on the Senate side in the afternoon. All nominees except for Marcus were quickly voted on and sent to the House, where none encountered any problem.
Marcus’s nomination got stuck on the Senate side. A nose count was taken in the Democratic caucus and she ran into trouble. So the Marcus nomination was passed “temporarily,” an action that usually means the votes are soft.
It was dinner time. And Shelley Marcus, daughter of Malloy supporter and longtime state Democratic powerbroker Ed Marcus, was still not a judge. The House hadn’t voted. And dozens of legislators were ready to vote no, an uncommon situation for confirmations.
At 85, Ed Marcus, a former state Democratic chairman and politically connected lawyer, still sees candidates flock to his home in Stony Creek for lucrative fundraisers. Marcus was an early supporter of Gov. Malloy. And Malloy proved his loyalty: As serious questions arose about Shelley Marcus’s fitness to serve as a judge, the governor stuck with her.
Shelley Marcus’s nomination ran into trouble over two issues that were discussed at length in the Senate and the House: Her role in advising women in the so-called gifting table case. (She and her dad represented a number of them in a state case brought by the State Attorney General’s office). And her role leading up to a malpractice case that figures in a lawsuit Branford filed against her firm and one of its litigators David Doyle. Read about those controversies, including the Marcus’s defense, here and here.
State Sen. Meyer, a former prosecutor, said he had read 202 pages of Marcus’s testimony for the prosecution in the recent gifting tables’ case in U.S. District Court in Hartford. Meyer said the Marcus Law Firm represented 21 women in 2009 on state-related charges. The firm was paid 55,000 by those clients over 7 months, he said.
At the time, he told his colleagues on the Senate floor Marcus had “no prior experience with pyramid schemes or criminal matters. She testified that she never advised her clients that the tables were legal or illegal or they should stop the tables. Indeed she testified that her clients ‘had a good defense.’”
At one point she testified (at the gifting table trial) her clients gave depositions to the Attorney General’s office. Before they did “she was asked if they should take the Fifth Amendment right against self-incrimination. And she [Marcus] advised them not to exercise the Fifth. And guess what happened? The depositions, the transcripts were used by the U.S. Attorney’s office [in the subsequent case]. It doesn’t take a rocket scientist here. There could be a malpractice case against her. It is amazing.” The two women on trial were convicted and face sentencing in May.
“As a former prosecutor and practicing attorney, I think it was an act of incompetence not to give her clients a professional opinion about the legality of the tables, and that they not stop the tables and not do any legal research on gifting. It is incompetent not to consult tax attorneys for her clients. I think her advice about the Fifth Amendment is extraordinarily serious. She did not anticipate a criminal case despite all the facts that screamed a criminal case. And then the depositions were used against her clients.”
In summing up on the floor, Meyer said he admired fellow Democratic Gov. Malloy’s other nominations. “Our job is to do a serious vetting and to maintain the high caliber of this judicial branch.I don’t think Shelley Marcus reaches that standard.”
One of Marcus’s strongest supporters, Sen. Leonard Fasano of East Haven, said he has known Shelley Marcus his whole life and her father for a substantial portion of his life.
“I know Shelley Marcus and I know Ed Marcus and when you are in politics you build up a lot of enemies on all sides,” he said of his friends. “Let her rise and fall on her own merits. Let her rise and fall on who she is. And no one has said she is not a good person and would not make a good judge. And no one has said she is not a competent person and lawyer. That is why I am going to support Shelley Marcus.”
The Marcus Law firm has been sued for malpractice in the other controversial case brought up in the confirmation hearings, involving work the firm had done for the town of Branford, including work done by Shelley Marcus.
Fasano addressed that too: He called that malpractice lawsuit political in nature.
“The real matter is that this has nothing to do with Shelley. It has nothing to do with her at all,” he argued.
Hartford state Sen. Eric D. Coleman, co-chair of the Judiciary Committee, echoed Fasano’s words. He claimed Shelley Marcus was not involved but another lawyer in the firm was, a reference to litigator David Doyle whom he did not name. (Click here for a story reporting on Shelley Marcus’s involvement in the case.)
Next Stop: The House
Over at the House, shortly before 7 p.m., Marcus’s nomination was put forth by Judiciary Committee co-chair Gerald M. Fox. He said one of the issues at the recent gifting table trial in federal court was that some participants said Shelley Marcus had given them advice that the tables were legal. He noted that she denied this.
But questions remained.
State Rep. Rosa Rebimbas of Naugatuck told her fellow legislators that potential legal issues arising from the still unresolved pending malpractice case and perhaps the gifting tables case “could be distracting to any judge appointed to the bench and her staff.”
Rebimbas said she was concerned in the gifting table’s case about Marcus “representing multiple parties” and potentially “multiple issues of conflict of interest.” She said it was clear there “were different levels of culpability” among the gifting table participants. She referred to Meyer’s statement om the Senate, which she attended, that depositions were taken of these individuals and those depositions were then used in the criminal case against them. In addition, she said there were “two other women out there that have not settled anything. So we still don’t know what might come of that.”
State Rep. Arthur J. O’Neill said he was still troubled by some of Marcus’s answers to the Judiciary Committee at her grueling 90-minute confirmation hearing Friday. He referred to the fact that at a crucial judicial settlement she admittedly served as her client, Branford’s then-first selectwoman, while another attorney from her office represented the town. “I didn’t understand that, how a lawyer can function simultaneously as a client and lawyer at the same time,” O’Neill said.
Attorney Marcus, he said, “has the basic skills to be a judge although she certainly does not go over the top as the nominees on this list do with tremendous amounts of trial experience. There is a nagging sense that there is something that just doesn’t make sense. A former chair of the Judiciary once told me: “By the time you get to the Judiciary Committee, if your nomination got this far it is yours unless you blow it at the Judiciary Committee.’ And while it wasn’t a complete meltdown, this still and all was by far the worst performance I have seen in a while by a judicial nominee before the Judiciary Committee.”
“The answers just don’t seem to add up, and yet it is being pushed forward. I asked to hold the nomination. That was voted down. We need more information on these cases. I don’t quite understand why the rush to put this nominee’s name through the process. It is a nagging sense there is more to these stories”
Judge Marcus has declared over and over again there is nothing more to learn.
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and this is whats wrong with our politicians these days...
you would think a judge should be squeaky clean, not in CT I guess