HARTFORD, CT — Gov. Dannel P. Malloy hasn’t actively been talking to Republican Senators about Justice Andrew McDonald’s elevation to chief justice, but he also has no plans to withdraw his nomination.
Asked about what could be the defeat of McDonald’s confirmation in the Senate, Malloy warned that politicizing the judiciary is a “very dangerous proposition.”
He said he would hate to see judges be afraid to make a decision or elaborate on a case because they might not get reappointed if they do. He said if this was the case in 1961 — and he added that he picked this example in particular because today is International Women’s Day — then the Connecticut Supreme Court may never have reached a decision in Griswold v. Connecticut — the landmark reproductive rights case that set the stage for Roe v. Wade.
Judges must stand for reconfirmation by the legislature every eight years.
Malloy said there’s no one in the legal world on both sides of the political spectrum who hasn’t supported McDonald’s confirmation to chief justice.
“I hope it is not because he’s a gay man that he’s being treated this way,” Malloy added. “I hope it’s not because he and I have known each other for a very long time that he’s being treated this way, but I do know the way he’s being treated could have a very damaging impact on our legal system in Connecticut.”
Malloy said he has no plans to withdraw McDonald’s nomination even if the state Senate doesn’t plan to take up his confirmation.
The Senate has to first reject the unfavorable report from the Judiciary Committee in order to take up McDonald’s confirmation. With Sen. Gayle Slossberg, D-Milford, recusing herself, Republicans, who would hold an 18-17 advantage, could seek to simply refuse to accept the report and end it there.
The House — where Democrats hold an 80 to 71 majority over Republicans — is expected to take up McDonald’s confirmation on Monday and there’s no indication that he wouldn’t receive enough support from that chamber.
Meanwhile, the legal community has come to McDonald’s defense with editorials, Facebook ads, and television ads.
A Facebook ad aimed at Republican lawmakers had been viewed more than 15,000 times as of Thursday.
“You can stop the hate from coming into Connecticut,” the narrator says. “Supreme Court Justice Andrew McDonald is under attack. You can stop this smear campaign now. Tell your state Senator to confirm Andrew McDonald for chief justice.”
The ad is paid for by True Justice LLC, an entity created by John Stafstrom, a partner at Pullman and Comley where McDonald was also a partner before becoming Gov. Dannel P. Malloy’s chief legal counsel in 2011.
Editorials, like the one written by attorney Wesley Horton, have also argued for McDonald’s confirmation.
Horton said McDonald’s “vote is not always predictable,” and he described him as “a centrist justice with whom all legislators should be very comfortable.”
Senate Republican President Len Fasano, R-North Haven, met with McDonald Thursday. The two are expected to go over the 100 decisions McDonald has authored in his five years on the bench.
Fasano read them all over the weekend.
“There’s a difference between having someone on your team and someone as the captain of your team,” Fasano said last week following the 13-hour Judiciary Committee hearing.
Fasano said being elevated to chief justice comes with more scrutiny.
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.
Sen. John Kissel, R-Enfield, 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.