HARTFORD, CT — In the halls of the state Capitol, legislative leaders continued to debate the merits and the politics of whether to elevate Andrew McDonald to chief justice of the Connecticut Supreme Court, while one lawmaker said she would recuse herself.
Sen. Gayle Slossberg, D-Milford, who sought to disqualify McDonald from hearing a case involving her husband, said she would recuse herself. That means McDonald’s fate lies in the hands of 18 Republicans and 17 Democrats in the state Senate. It means Republicans could block the nomination, but they said Tuesday that they had yet to make a decision.
Democratic Gov. Dannel P. Malloy showed no signs of withdrawing the nomination and Democratic legislators defended McDonald Tuesday.
“I am greatly disappointed by the partisan tactics that pervaded Justice McDonald’s nomination hearing before the Judiciary Committee yesterday,” Malloy said. “These antics undermine the integrity of our process – a process that should be based on an objective analysis of issues and facts.”
Senate Majority Leader Bob Duff, D-Norwalk, said in Twitter that “This is a slippery slope for Republicans. Never ever has the CT legislature voted in a partisan manner for a judicial nominee. We’ve always voted on qualifications. Andrew is eminently qualified to be Chief Justice.”
Duff added later that “maybe they don’t like his lifestyle.” It was a nod to McDonald possibility becoming the first openly gay chief justice in the United States.
House Minority Leader Themis Klarides, R-Derby, said she has never heard any Republican utter the words “homosexual or gay” when referring to McDonald. “The only people who have uttered that are Democrats.”
She said the debate during Monday’s 13 hour Judiciary Committee hearing was one of substance and it was focused solely on McDonald’s record both as a justice, as Malloy’s chief legal counsel, and a lawmaker.
McDonald is rare in that he has served in all three branches of government, which comes with its own unique set of problems.
Republicans wanted to know about where McDonald stood on the constitutionality of repealing the death penalty prospectively back in 2012 when he was the governor’s legal counsel.
“How could the counsel to the governor’s office on such an important piece of legislation not at least do that review of its constitutionality,” Sen. John Kissel, R-Enfield, said. “When everyone who was against it said it was going to undermine our death penalty.”
Kissel said he takes McDonald at his word a constitutional review never took place in 2012.
“A little strain of credulity, but maybe something else will come down the road,” Kissel added.
At the same time, Kissel said there should be no surprise after last year’s re-confirmation hearing with Justice Richard Palmer that there would be questions about the death penalty case.
Five years ago, McDonald was confirmed by a 33-3 vote of the Senate and 125-20 vote in the House of Representatives to win a seat on the court.
“Any changes in the opinions of legislators concerning Justice McDonald’s qualifications raise the question, ‘What has changed for Republican legislators?,” Senate President Martin Looney, D-New Haven, asked.
Kissel, who voted against McDonald’s confirmation in the Judiciary Committee, said the difference is now he has a record.
“Whether you like his decisions or don’t like his decisions there are concerns about importing facts that aren’t part of the record and maybe taking a position that is moving the state in a direction that’s beyond what’s normally done in decision making,” Kissel said.
He said at the moment his concerns outweigh any position he could take in support of him.
Fasano said he’s willing to sit down with McDonald and go over some of his decisions. He said the two have scheduled time to do that over the next couple of weeks.
“There’s a difference between having someone on your team and someone as the captain of your team,” Fasano said.
He said being elevated to chief justice comes with more scrutiny.
Both Fasano and Klarides have said neither of their Republican caucuses have taken a position. Both said they want to give their members who aren’t on the Judiciary Committee time to do their “homework.”