Nora Dannehy has overcome one hurdle on her way to an appointment as an associate justice to Connecticut’s State Supreme Court.
The state legislature’s Judiciary Committee voted Tuesday, 8/19/2023 -- 30 votes recommending confirmation and four against – to send Dannehy’s appointment to the state House and Senate for approval which, according to one report, is “expected to vote to confirm Dannehy during a special session on Tuesday [ 8/26/2023].”
Her Judiciary Committee confirmation hearing was, according to the report, “the first time Dannehy has spoken publicly about her decision to leave the investigative team led by a colleague, former U.S. Attorney John Durham. Among other things, Dannehy said [then Attorney General William] Barr pressed the Durham team to produce an interim report, presumably critical of the treatment of former President Donald J. Trump, that she feared could have influenced the outcome of the 2020 presidential election had it been published.”
Concerning Barr’s attempted release of an interim report, Dannehy told the committee, “Attorney General Barr began to speak more publicly and specifically about the ongoing criminal investigation. I thought his public comments violated DOJ guidelines. In the late summer of 2020, just months before the 2020 presidential election, he wanted a report written about our ongoing investigation.”
The interim report referenced by Dannehy was not released. But, Dannehy observed, “Publicly, he [Barr] would not rule out releasing that report before the presidential election. I had never been asked to write a report about an investigation that was not yet complete. I then saw a version of a draft report, the conclusions of which I strongly disagreed with [emphasis mine]. Writing a report — and particularly the draft I saw — violated longstanding principles of the Department of Justice. Furthermore the Department of Justice has a longstanding policy of not taking any public actions in the time leading up to an election that might influence that election.”
“I simply could not be part of it so I resigned,” she said. “It was the most difficult personal and professional decision I’ve had to make.”
The completed and unexpurgated Durham Report was later released to the public. According to the news report, “Durham never issued the interim report that Dannehy testified about and she was not asked at the hearing if she knows what became of it.”
Neither was Dannehy asked at her hearing whether Durham’s completed report was equally unacceptable to her as Barr’s unpublished interim report. One should always applaud the courage of public officials who resign, as Dannehy did, rather than compromise the principles of justice and constitutional probity to which they should adhere.
According to the news report, Dannehy told the Committee, “she made her views about Barr’s meddling known to others on the Durham team, but was not persuasive. She said she is unable to go into detail about the disagreement because she and others on the team were involved in the analysis of ‘highly classified information’ that cannot be discussed.”
Durham’s supposed acquiescence to the publication of an interim report and its non-disclosure suggests that Dannehy’s views concerning Barr’s meddling may have carried some weight with “the Durham team.” And Dannehy’s claim that she is unable to go into detail concerning her disagreement with Barr because “she and others on the team were involved in the analysis of ‘highly classified information’ that cannot be discussed, does not preclude a public discussion of a document, the actual Durham Report, that has long been made public.
Surely it is a matter of public interest whether or not an applicant to the Connecticut Supreme Court who worked for so many years with Durham and worked assiduously on the Durham Report agrees or disputes the findings of the final report.
Dannehy’s position on the U.S. Supreme Court’s overturning of Roe v Wade in its Dobbs v. Jackson Women's Health Organization decision is historically infirm. Dannehy argued before the committee that the high court’s reversal of Roe v Wade “took away an individual right, and I don’t think that has ever been done before.”
She also said, according to the news report, “… the court also violated the legal principle of stare decisis, which requires courts to follow precedent, unless it is found to have been egregiously wrong.”
Even Ruth Bader Ginsberg argued that Roe v Wade was improperly decided. The high court’s decision vacating Roe v Wade returned decision making on the matter of abortion from judicial to state legislative bodies. A state statute in Connecticut incorporating Roe v Wade, passed in 1990, protects women in Connecticut from judicial temporizing on the matter of abortion. And if stare decisis were to be enforced without exception, the high court never could have freed itself from the infamous Dred Scott v. Sandford (1857) ruling that African Americans could not be considered U.S. citizens and that Congress could not prohibit slavery in the U.S. territories.
Dannehy may want to re-read Abraham Lincoln’s “Speech on the Dred Scott Decision,” delivered on June 26, 1857.