Christine Stuart / ctnewsjunkie
Justice Andrew McDonald (Christine Stuart / ctnewsjunkie)

HARTFORD, CT — After more than 13 hours of testimony the Judiciary Committee was evenly divided early Tuesday on whether to elevate Supreme Court Justice Andrew McDonald to chief justice.

The committee voted 20-20 on his nomination, which means it will forward what will be considered an unfavorable report to the House and Senate. Rep. Thomas O’Dea, R-New Canaan, abstained.

The vote puts into question McDonald’s promotion to the position. If he’s confirmed it would make McDonald the first openly gay Supreme Court chief justice, according to administration officials.

Going before the Judiciary Committee that he once chaired was no easy task for McDonald, who was grilled by his former colleagues for eight hours Monday not only about decisions he’s made over the past five years as a justice, but also his tenure as a state lawmaker and his 35-year friendship with Democratic Gov. Dannel P. Malloy, who appointed him to the court.

McDonald’s 2013 appointment to the Supreme Court as an associate justice was not as controversial as Malloy’s attempt to elevate him to chief justice. Five years ago, McDonald was approved 30-3 by the Senate, and 125-20 by the House.

But 2018 is an election year and Republican lawmakers and candidates have sought to infuse McDonald’s nomination with a more Washington-style partisan debate.

Thirty-minutes prior to the public hearing Monday, 10 members of the conservative caucus said in a press release that McDonald simply doesn’t have enough experience to become chief justice.

“Our members also have concerns about Justice McDonald’s role in the judicial repeal of Connecticut’s death penalty statute and other potential judicial overreach,” the 10 lawmakers wrote. “However, given his lack of judicial experience, we need not factor those concerns into our decision to oppose Justice McDonald’s nomination. Justice McDonald may be, or may become, a fine jurist. However, given his lack of experience and lack of a substantial body of work, we do not believe he is currently the right person.”

Unlike recent practice in Washington, Connecticut’s General Assembly hasn’t ever tried to postpone an appointment to the court until a new governor can be named.

Malloy isn’t seeking re-election and over the past eight years has been able to seat six of the seven current Supreme Court Justices.

In the 13th hour of McDonald’s hearing, Sen. John Kissel, R-Enfield, told McDonald that if he doesn’t get nominated to chief justice, “it’s not like you lose your job.”

The vote on McDonald, who has served in all three branches of government, could go down to the wire.

“This is a really hard decision for me personally,” Kissel said. “… I don’t know how it’s going to shake out in this building.”

Kissel said the numbers between the two parties are so close he’s unable to predict what’s going to happen.

Democrats hold a 79-72 majority in the House and the Senate is evenly divided 18-18.

McDonald testified Monday that he’s authored approximately 100 opinions since being nominated to the Supreme Court in 2013. Those include 69 majority opinions, 15 dissenting opinions, 12 concurrences, and 12 concurring and dissenting opinions. He’s been on the panel for 483 decisions.

Despite those numbers, Republican gubernatorial candidate Tim Herbst said McDonald has “no judicial experience.”

“If John Rowland or Jodi Rell nominated their best friend and political advisor to serve as the Chief Justice of the Connecticut Supreme Court, they would have been rightfully excoriated by the political opposition and likely criticized by those in their own party,” Herbst said.

But a group of attorneys, bar associations, and three law school deans warned in a letter to the Judiciary Committee that “Reviewing judicial decisions through too partisan a lens and with political purposes in mind poses risks to the independence of our judiciary and to our system of checks and balances. If judicial confirmations focus less on a judge’s qualifications and more on the partisan political implications of a judge’s nomination, then judicial decisions are likely to become influenced by judges’ perceptions of what is politically controversial at the time.”

Jonathan Shapiro, incoming president of the Connecticut Bar Association, testified after midnight that politics should not play any role in judicial nominations. Many others in the legal community agreed.

McDonald said there is no “ideological divide” on Connecticut’s Supreme Court.

Rep. Arthur O’Neill, R-Southbury, grilled McDonald about his relationship with Malloy.

O’Neill asked how many times the two saw each other socially over the last five years. McDonald said about once per month.

O’Neill wanted to know if they ever discussed any pending cases during their time together.

“No,” McDonald replied. “He respects my role, and I respect his.”

O’Neill struggled to understand what the two might speak about if they’re not talking about their work. McDonald said “the nature of our relationship transcends the work we do.”

The two have been friends for 35 years. They worked with each other in Stamford, and then again when McDonald became the governor’s first chief legal counsel in 2010.

Although he was honored to be nominated to the Supreme Court, McDonald said his life’s goal was never to sit on the bench.

“What was always appealing to me was the intersection of law and public policy,” McDonald told the Judiciary Committee.

Christine Stuart / ctnewsjunkie
Justice Andrew McDonald (Christine Stuart / ctnewsjunkie)

Lawmakers questioned McDonald for hours about his decisions regarding Connecticut’s death penalty, his definition of judicial activism, and even legislation he asked to be drafted back in 2009 that would have impacted the corporate structure of the Catholic Church.

Death Penalty

In 2012, the General Assembly prospectively abolished the death penalty, barring the execution of those convicted of capital offenses after April 25, 2012. At that time there were 11 men on death row and one of them, Eduardo Santiago, claimed “imposition of the death penalty would violate the state constitutional prohibition against cruel and unusual punishment.”

Santiago’s appeal of his death sentence in the killing of Joseph Niwinski in December 2000 was pending when the legislature passed the law prospectively repealing the death penalty. In 2015, the court found in a 4-3 decision that the death penalty “no longer serves any legitimate penological purpose” for the remaining death row inmates. In 2016, the court upheld that stance, sparing the 11 men on death row from the possibility of being executed.

“There have been misstatements in the media that we declared the statute passed by the legislature unconstitutional,” McDonald said. “We did not.”

He said they didn’t declare the death penalty “unconstitutional” under all circumstances.

McDonald was Malloy’s legal counsel at the time and testified he never had conversations with anyone about the potential constitutionality of repealing the death penalty prospectively. Under questioning from Rep. Rosa Rebimbas, R-Naugatuck, McDonald explained discussions about constitutionality were not part of his job as legal counsel and those discussions simply didn’t take place.

Rebimbas pointed to news articles from 2012 that show his office did discuss constitutionality when it came to campaign finance laws. She continued to push on the issue of the death penalty, but McDonald continued to answer that those discussions never took place.

Possibly because Malloy is also a very capable attorney, McDonald suggested.

Judicial Activism

Judicial activism would be when a judge seeks to legislate from the bench, instead of simply interpreting the law as set forth by the General Assembly.

“I have a profound respect for this committee in particular, but for the legislature in general,” McDonald said.

His supporters agreed.

“I know there are those who claim that Justice McDonald is some kind of radical judicial activist; that claim is absurd,” Senate President Martin Looney, D-New Haven, said.

Looney said McDonald actually offers the appropriate deference to the role of the legislature even in cases where he personally would have preferred a different result.”

Rep. William Tong, D-Stamford, asked: “Are you an activist?”

“I am not,” McDonald replied, adding that he passed a statute that made sure that judges don’t misinterpret the plain language of the law as it’s written by the legislature.

He said “judicial activism” is not a legal term of art, but it’s used by the public on the right and the left to explain away decisions in certain cases.

He said he’s “compelled” to apply the law as it’s written by the legislature, and pointed to his decision in State v. Skipwith.

In that case, McDonald implored the legislature to provide a remedy to victims where no remedy currently existed.

“This case provides a stark reminder that a constitutional right, unadorned by a remedy to enforce or vindicate that right, is a hollow one,” McDonald wrote. “Indeed, a victim of crime who is denied her constitutional rights by a prosecutor or the court is, in a very real sense, victimized all over again.”

Judicial Conduct

McDonald said he’s recused himself from 80 cases over the past five years.

There was only one time an attorney sought to have McDonald disqualified from hearing a case. McDonald denied attorney David Slossberg’s request in Artie’s Auto Body v. Hartford Fire Insurance Company. McDonald and Slossberg had a disagreement years ago when McDonald was representing his husband in Gray v. Cosi. Slossberg was representing the corporation.

Slossberg is married to Sen. Gayle Slossberg, D-Milford, who also submitted an affidavit citing a legislative dispute with McDonald that she felt would hurt his ability to be objective.

In an affidavit, Slossberg said during a June 2012 meeting with McDonald: “Justice McDonald start screaming directly at me at the top of his lungs in a very personal and shocking manner,” Slossberg wrote in the affidavit. “After a long tirade, it was clear to me that his conduct had nothing to do with the legislative issues to be addressed at the meeting, but rather his personal animus towards me.”

Sen. Slossberg doesn’t sit on the Judiciary Committee, but she will be asked to vote on McDonald’s elevation to chief justice if she doesn’t recuse herself.

McDonald said he didn’t hold animus toward attorney Slossberg or Sen. Slossberg, and felt it was unnecessary to recuse himself.

Neither Slossberg filed a grievance with the Judicial branch.

Catholic Church

More than 4,000 Roman Catholics descended on the state Capitol in 2009 to protest a bill that would have changed how the church manages its finances by giving elected laity more power than priests or bishops.

The controversial bill was withdrawn as questions about its constitutionality were raised by parishioners, church officials, and some lawmakers.

McDonald said Monday that he withdrew the legislation calling for a public hearing on the finances of Catholic Corporations and met with the bishops to express regret about how the legislation was introduced.

It had been the central focus of the Judiciary Committee’s questioning of McDonald when he was first nominated to the court back in 2013.