Senate Republicans voted as a bloc Tuesday to deny Andrew J. McDonald confirmation as chief justice of the Connecticut Supreme Court, stopping the ascent of a political and legal trailblazer for the gay community, a factor that opponents insisted was irrelevant and supporters said could not be ignored.
Sen. Beth Bye, D-West Hartford, the only openly gay member of the Senate, said McDonald’s treatment was a dramatic departure from previous confirmations, beginning with an unprecedented 13-hour confirmation hearing and the legislature’s second-guessing of his ethics and approach to several controversial cases.
“So forgive my skepticism that this has nothing to do with Justice McDonald being gay,” Bye said.
Sen. Joan Hartley of Waterbury was the lone Democrat to vote against McDonald’s confirmation, which failed 19 to 16.
After the vote, McDonald issued a statement evoking a lesson he said he had learned from his mother and drew upon in delivering her eulogy.
“Whenever I faced a challenging situation, or was disappointed about something that happened to me, she would always remind me, ‘Andrew, life is not about you. It’s about those who need you.’” McDonald said. “To everyone I tried to help, and to everyone who tried to help me, I am sorry I failed in this endeavor. And to the LGBT community, particularly its youth who I know have been closely watching this process, I want you to understand that every minority group in history has faced setbacks. In the fullness of time, those setbacks usually end up becoming a source of strength, a reminder of why the community must continue to press for equality, and a framework that helps shape and develop the next steps of progress.”
Whatever the motivations for it, the election-year vote portends a GOP return to the social issues of “God, guns and gays” that the state party had minimized in recent years, making strong and steady gains in both chambers of the General Assembly since 2008 by focusing on the Democrats’ shaky stewardship of the state’s economy and finances.
McDonald’s vote as an associate justice in a 4-3 opinion striking down the last vestiges of capital punishment in Connecticut were central to the GOP’s opposition, and at least one Republican candidate for governor, Tim Herbst, has made both McDonald’s confirmation and potential restoration of the death penalty campaign issues.
Democrats already have signaled they intend to use the McDonald confirmation as an election issue in a year when the Democratic base already is energized by the election of President Trump, and Gov. Dannel P. Malloy had warned a day before the vote, “Just like elections, votes have consequences.”
“I personally would not vote for anyone who voted against Justice McDonald,” Malloy said after the vote. “And I think anyone who has a gay friend, or child, or relative, should think twice about supporting anyone who voted against Justice McDonald.”
But the impact of the vote on the state’s tradition of largely depoliticizing judicial nominations most probably will remain unknown until next year, when a new governor must decide if he or she will abide by the custom of reappointing judges to new terms, regardless of their judicial philosophy or the political affiliation of the governor who appointed them.
Judges in Connecticut serve eight-year terms, with a rebuttable presumption they will be reappointed by governors and confirmed by legislators, absent good cause, until reaching the mandatory retirement age of 70.
Malloy now must decide on another nominee to succeed Chase T. Rogers as chief justice. Senate Republican leader Len Fasano of North Haven emphasized during the debate Tuesday that the GOP has no intention of blocking Malloy from making a final nomination to the court in his waning months as governor.
Connecticut statutes state that when a governor’s judicial nominee has been rejected, the chief executive has five days to offer a second nomination. “We’re looking at that, but I’ll have more to say about it in the coming days,” Malloy said.
The vote Tuesday was both historic, yet anticlimactic.
A vote to block the confirmation of a chief justice appears to be unprecedented, but Fasano delivered a hard vote count the previous day to Malloy, setting the stage for a debate in which the ending was preordained. Malloy quickly announced he would not try to withdraw the nomination of McDonald, a long-time friend and adviser.
“This is tough for me, but I have to do what is right, what I feel is right for the judicial system, what I think is right for where I think the court needs to go,” Fasano said on the floor.
The House approved McDonald’s confirmation by vote of 75 to 74, with one Republican in support and five Democrats in opposition.
The opposition to McDonald, 52, a former state senator from Stamford who was a leading voice in the legislature on a range of progressive issues, centered on his participation in a case that struck down the death sentences of 11 men placed on death row before Connecticut repealed capital punishment in 2012 — though only for future crimes, a political compromise.
The legal profession rallied around McDonald, praising his intellectual acumen, defending his decision against recusal in certain cases, and warning that a vote against confirmation, if prompted by the legislature’s disagreement with an opinion, would undermine judicial independence.
Bye said that McDonald, as a co-chair of the Judiciary Committee, had supported the reappointment of Justice Peter Zarella, the author of a dissent in the court’s 2008 decision legalizing same-sex marriage. To her and other gays, the dissent was insulting, calling gay marriage a “vast and unprecedented social experiment.”
“He was gracious and supportive,” Bye said of McDonald, “because he understood full well that the alternative to be political because he didn’t agree with that ruling would be a very, very hazardous path to go down for the state of Connecticut.”
Critics say the death-penalty opinion, written by Justice Richard N. Palmer, was the product of judicial activism, and McDonald’s participation was ill-considered. Hartley said after the vote that she believed McDonald should have recused himself from hearing the case.
McDonald was the chief legal adviser to Malloy in 2012, and Fasano and Sen. John A. Kissel, R-Enfield, a co-chair of the Judiciary Committee, said they were skeptical of McDonald’s claim he offered the governor no legal advice about the constitutionality of the law.
The opinion nearly cost the 67-year-old Palmer his confirmation to a final eight-year term before reaching retirement age. The Senate approved his confirmation on a 19-16 vote.
Fasano, who left his office Friday with binders containing copies of McDonald’s cases, reviewed three in fine detail. He questioned whether McDonald had reached beyond the record to render decisions. The level of detail in Fasano’s critique drew an unusual rebuke from the governor while the debate still was under way.
“Senator Fasano’s performance today should send a chill up the spine of every sitting judge in Connecticut,” Malloy said. “His antics run afoul of the tradition and decorum our General Assembly has followed since 1636. During that long history, no legislative leader, let alone a member of the Connecticut bar, has nitpicked, parsed, and deconstructed the decisions of a sitting judge more than Senator Fasano did today.”
“It is now an undeniable fact that Andrew McDonald has been treated differently than others who came before him,” Malloy said. “It begs the question: What is different about Justice McDonald that so concerns Connecticut Republicans?”
Republicans said it was not sexual orientation.
They noted that Palmer, the author of the death penalty decision, also drew strong opposition, and that Republicans strongly supported McDonald’s confirmation as an associate justice in 2013.
Kissel noted that Rep. Rosa Rebimbas, R-Naugatuck, the ranking House Republican on Judiciary, opened the House debate on McDonald by insisting the jurist’s sexual orientation was irrelevant.
“She started off by saying what this is not about. Unfortunately, I feel I just have to underline that,” Kissel said in his opening remarks. “This is not about Justice McDonald’s personal views on how he wants to run his personal life.”
Kissel, who attended McDonald’s swearing in as a justice, said the Republican opposition was based on his actions on the court. Kissel said the scales tipped against McDonald, if “not by a huge amount.”
Fasano said it was supporters of McDonald, not the opponents, who politicized the confirmation with a campaign that included television ads comparing the politics of Connecticut Republicans to those of President Trump.
“Other people can say what they want,” Fasano said. “We didn’t push back or fight it, because to me it’s just noise.”
Sen. Kevin Witkos, R-Canton, faulted McDonald for not denouncing the television ads and robo calls made on his behalf. They suggested opposition to the confirmation was prompted by hate, Witkos said.
Fasano also faulted McDonald for refusing to recuse himself from a case involving a lawyer, David Slossberg, with whom he had clashed previously. Slossberg had defended a company McDonald successfully sued on behalf of his husband, Charles Gray. Slossberg had claimed the legal fight grew personal.
When another case involving Slossberg, who is married to Sen. Gayle Slossberg, D-Milford, came before the Supreme Court, he asked McDonald to recuse himself. In support of his motion, Slossberg offered an affidavit from his wife accusing McDonald of screaming at her while he was Malloy’s counsel during a meeting over legislation, saying it was evidence of personal animus.
Sen. Joe Markley, R-Southington, said the behavior described in the affidavit was disgraceful.
McDonald refused to recuse himself. Slossberg’s client lost a huge judgment in a unanimous decision. Gayle Slossberg, meanwhile, recused herself from the Senate debate, giving the GOP an effective majority of 18-17 in the evenly divided Senate on the question of McDonald’s confirmation.