HARTFORD, CT — By a one-vote margin Monday the House forwarded the confirmation of Supreme Court Justice Andrew McDonald to be chief justice to the Senate.
After about three hours of debate that at times sounded more like a debate over repeal of the death penalty, the House voted 75-74 in favor of McDonald.
Democratic Reps. Larry Butler of Waterbury, Minnie Gonzalez of Hartford, Liz Linehan of Cheshire, Daniel Rovero of Dayville, and Bruce Morris of Norwalk voted against McDonald. Republican Rep. Livvy Floren of Greenwich voted for McDonald, while the rest of the Republicans voted against his confirmation to chief justice.
Republicans started out the debate Monday by dismissing allegations that anyone who would vote against elevating McDonald to chief justice was somehow bigoted because McDonald is gay.
“It is not a negative factor,” Rep. Rosa Rebimbas, R-Naugatuck, said.
She maintained that Connecticut is not Washington and that anyone who votes against McDonald is not doing so for partisan reasons.
McDonald has authored 100 decisions and sat on a panel for nearly 500 decisions over his five years, but lawmakers continued to return to his decision in two cases brought by the men who were left on death row when the state passed legislation repealing the death penalty in 2012.
That 2012 legislation was designed to abolish the death penalty going forward, leaving 11 men on death row. Appeals were filed in two cases challenging whether the death penalty should remain for those 11, and in a 4-3 decision in 2015 the court found that the death penalty “no longer serves any legitimate penological purpose.”
The decision goes onto read: “In prospectively abolishing the death penalty, the legislature did not simply express the will of the people that it no longer makes sense to maintain the costly and unsatisfying charade of a capital punishment scheme in which no one ever receives the ultimate punishment.”
In that case, State v. Santiago, former Chief Justice Chase Rogers, Justice Peter Zarella, and Justice Carmen Espinosa wrote separate dissenting opinions, while Justices Flemming Norcott, Dennis Eveleigh, and Andrew McDonald joined Richard Palmer in the majority decision. In a separate 5-2 decision a few months later, the court upheld its decision.
Rep. William Tong, D-Stamford, told his colleagues in the House Monday that they were not deciding whether Justice McDonald was qualified to be a justice. He said they decided that five years ago when they confirmed him on votes of 125-20 in the House and 30-3 in the Senate.
He said they were deciding whether he was qualified to lead the Judicial Branch. Tong argued that McDonald was qualified because he had served in all three branches of government and managed large numbers of people.
However, Republicans kept returning to McDonald’s decision on the death penalty and his decision not to recuse himself as a reason for his disqualification.
“We can’t vote against nominees because we would have made a different decision,” Tong said.
He said the General Assembly can’t be in the position of “second guessing judges because that is a naked, straight up violation of the separation of powers.”
He said judges have to be able to make tough decisions without influence from the elected branches, and if “we take down that wall and second guess those justices, why have a Supreme Court at all?”
Some Republicans have described McDonald as a “judicial activist” but many in the legal community say he’s clearly not an activist judge.
While McDonald was a state Senator from Stamford he drafted a state statute that requires the Judicial Branch to strictly adhere to the plain language of legislation as it’s written before considering any outside sources of information.
“There’s some suggestion that he is not now qualified because he was not a judge before he became a justice,” Tong said.
Nothing could be further from the truth, according to Tong, “Justice McDonald is not just imminently qualified, he’s ready.”
Rep. Arthur O’Neill, R-Southbury, said he’s not supporting McDonald’s confirmation because he failed to recuse himself in the Santiago case when it was clear he should have.
“Associate Justice McDonald has failed to live up to his commitment to recuse himself in cases involving Gov. Malloy where recusal is justified to avoid a reasonable inference of bias,” O’Neill said.
He said they can’t trust McDonald to make the right recusal decision when it comes to cases involving Malloy.
O’Neill said McDonald swore he had no involvement in advising Malloy over the 2012 prospective death penalty repeal, which left 11 men on death row.
But O’Neill and Republicans had their doubts about that based on the friendship between the two men. They surmised that because McDonald advised the governor on repeal of the death penalty as his chief legal counsel, then he should have recused himself when the case was before the court.
Rep. William A. Petit Jr., R-Plainville, the lone survivor of a brutal 2007 home invasion in Cheshire that eventually sent two men to death row, said the decision in Santiago — which gave the two men who killed his wife and two daughters life in prison — was flawed at every level.
He said former Chief Justice Chase Rogers wrote in her dissent that the majority argument was built on a house of cards.
“Given what I fear is his bias, I’m concerned about confirming a justice who wants to push a personal agenda and not properly interpret our laws,” Petit said.
Rep. Larry Butler, D-Waterbury, said he has a family member who was murdered and it was McDonald’s decision on the death penalty that is the reason he’s voting against McDonald’s confirmation.
Butler said he’s finding it hard to separate McDonald’s role as chief legal counsel and his decision to participate in the death penalty case.
Rep. Steve Stafstrom, D-Bridgeport, said McDonald was not asked to recuse himself in that case and would not have been able to based on the Judicial Code of Conduct.
“A justice must sit on a case unless there are grounds for recusal. They’re required to sit,” Stafstrom said.
He said the debate over McDonald’s elevation to chief justice is devastating to the judiciary because it sends a message that there are consequences for making tough decisions.
Rep. Bruce Morris, D-Norwalk, said he has a problem with McDonald’s positions on religious liberty based on legislation he introduced in 2009 that would have changed how the Catholic Church managed its finances.
“Rights are rights,” Morris said. “As legislators, we shouldn’t marginalize any.”
Morris said he likes McDonald, but he can’t get past the 2009 bill.
McDonald eventually withdrew the legislation, which he drafted at the request of two constituents concerned about financial mismanagement within the church, Thomas Gallagher, a parishioner at St. Catherine of Siena of Greenwich, and Paul Lakeland, a former priest and director of the Center for Catholic Studies at Fairfield University.
Linehan, who didn’t speak at all during the debate, hails from the district where Petit lived in 2007 when he was bludgeoned and his family was murdered.
In a statement, she said he had every intention of voting for McDonald Monday.
However, after a conversation with Petit she began to doubt she was making the right choice.
“I have listened to the concerns raised by Rep. Petit and others about Judge McDonald’s record on the death penalty, and his decision not to recuse himself from that court case despite his previous legislative advocacy. Based on these concerns, and these concerns only, I voted against his confirmation,” Linehan said.
It’s unclear how soon the Senate will take up the confirmation. There’s no indication that it will pass the Senate if it’s going to be a party line vote because Sen. Gayle Slossberg, a Democrat from Milford, is recusing herself.