High court milestone in Malloy’s next round of nominees

Gov. Dannel P. Malloy, after filling no judicial vacancies for more than a year because of budget constraints, is reviewing dozens of potential nominees in preparation for appointments to the trial court, the Appellate Court and the Supreme Court.

“It’s a big project that’s underway, and something I’m spending a lot of time on,” said Malloy, a Democrat who has altered the face of the judiciary in the past six years with what are believed to be the most diverse collection of judicial nominations ever made by a Connecticut governor.

With Justice Peter T. Zarella retiring in December and Justice Dennis G. Eveleigh reaching the mandatory retirement age of 70 next October, the Connecticut Supreme Court soon will be dominated by Malloy appointees.

Unlike President-elect Donald Trump’s pivotal selection of the next U.S. Supreme Court justice, Malloy’s choice for the state’s highest court is more likely to be seen as a legal footnote than a political headline. The ideological balance of Connecticut’s court is not in play.

“I haven’t seen Gov. Malloy apply an ideological litmus test. He has emphasized diversity, and I think that diversity is reflected in his appointments to all the courts in Connecticut, and that includes the Supreme Court,” said Ross Garber, the counsel to two previous governors. “In terms of ideology, I’m not sure there is a notion of a Malloy court.”

Four of the seven justices will be Malloy appointees once the governor names a successor to Zarella, a conservative appointee of Rowland, a Republican. A fifth is possible in late 2017 or early 2018 with the retirement of Eveleigh, appointed in 2010 by Republican Gov. M. Jodi Rell in her final year in office.

But the ability of Connecticut’s first Democratic governor in two decades to name a majority of a state’s highest court is barely noticed at the State Capitol, unlike the fight in Washington by a Republican Senate to block President Obama from nominating a successor to Antonin Scalia, which would have tipped the ideological balance of a closely divided court.

“I don’t think that the Connecticut Supreme Court has court epochs in the same way the U.S. Supreme Court does,” said Daniel J. Krisch, a co-chair of the state Bar Association’s appellate section. “There is not the same level of ideological divisions and not the same clear-cut differences.”

Malloy’s three current appointees on Connecticut’s highest court — Carmen E. Espinosa, Andrew J. McDonald and Richard A. Robinson — split on a decision striking down the last vestige of capital punishment in Connecticut: the 11 men awaiting execution under sentences handed down before the General Assembly repealed the death penalty for future crimes.

Espinosa, a former federal prosecutor and FBI agent named by Malloy to the Appellate Court and then to the Supreme Court, sided with Zarella and wrote an unusually scathing dissent. McDonald and Robinson voted with the majority.

Before the death penalty decision, the court’s highest-profile case probably was the Kerrigan decision in 2008 legalizing same-sex marriage in place of a civil union law passed by the General Assembly.

“There are some folks I’ve appointed who are more conservative than I am, and there are some folks who I’ve appointed who are probably more liberal than I am,” Malloy said. I really wanted a court — having been a practitioner, having appeared before many judges  — I wanted a court that looked more like Connecticut than we were used to.”

Thirty percent of the 47 judges Malloy has nominated to the Superior Court since taking office in January 2011 have been minorities, twice the percentage of those named by his immediate predecessors, Rell and Rowland. He has been aided by a greater pool of minority lawyers who have cleared scrutiny by the Judicial Selection Commission.

Governors can only choose nominees from a list of lawyers approved by the commission.

His nominations to the Supreme Court include McDonald, its first openly gay justice, and Espinosa, its first Hispanic justice. His other two nominees were black, Robinson and Lubbie Harper Jr., who retired and was succeeded by McDonald in 2013.

Of his 47 nominees for the Superior Court, Malloy has picked 14 minorities: two Asians, nine African-Americans and three Hispanics. Nineteen, or 40 percent, have been women, who now comprise 35 percent of the trial bench.

“To the extent there is a Malloy court, and I think there is, his legacy is a different but important metric — diversity on the bench,” Krisch said.

Krisch, who was a law clerk for Ellen Ash Peters, the first woman to serve as chief justice of the Supreme Court, said the court’s long been dominated by centrists, with liberals and conservatives who have influenced the institution with their dissents, such as Zarella on the right and the liberal Robert I. Berdon on the left.

“What I think about is a court that represents the population of the state of Connecticut. I think I’ve done very well there, politically, ethnically, racially,” Malloy said. “I want folks that have demonstrated in their past they are prepared to succeed in these positions. There is no litmus test that is applied. I’m looking for people who care, are prepared to serve, have good backgrounds. There is no one quality I am looking for.”