Senate Expected To Take Up McDonald Nomination Tuesday

HARTFORD, CT — (Updated 4 p.m.) Next Tuesday will be judgment day for Supreme Court Justice Andrew McDonald. That’s the day the state Senate is expected to take up his nomination to chief justice.

With the chamber evenly divided between Democrats and Republicans and with one Democratic state Senator saying she plans to recuse herself, McDonald will be handed a defeat if it’s a party line vote.

McDonald’s elevation to chief justice squeaked through the House last week by one vote.

Senate Republican President Len Fasano and Senate President Martin Looney spent about 45-minutes Wednesday in Gov. Dannel P. Malloy’s capitol office discussing McDonald.

When the duo emerged Fasano continued to hold his cards close to the vest.

“We just had a dialogue that’s all. It was just a conversation,” Fasano said.

Looney said they discussed some of the decisions in McDonald’s cases over the past five years he’s been an associate justice.

“It was a conversation that dealt with some specifics regarding cases and the implication of the votes going in different directions,” Looney said.

Looney said Fasano still has to discuss McDonald with his caucus.

In the meantime, rumors have emerged regarding offers of elevating Superior Court Judge Andrew Roraback, a former Republican state senator, to the Supreme Court in exchange for approving McDonald’s confirmation.

First reported by Hearst Media, neither Fasano or Malloy are confirming or denying the rumors about Roraback.

“The decision on Andrew McDonald rises and falls on the merits of Andrew McDonald,” Fasano said Thursday.

Malloy’s office also would not answer directly.

“Our administration has never commented on potential judicial appointments before they are made, or disclosed the content of our discussions with potential nominees,” Kelly Donnelly, a spokeswoman for Malloy, said. “What we will say is that, over the course of his tenure, Governor Malloy has purposefully used his nominating power to further diversify Connecticut’s judiciary, including its racial and gender makeup, but also the backgrounds and perspectives of individual judges. The Governor is not only open to further balancing our courts in this way, he is committed to it.”

Regardless of the outcome of the Senate vote, Looney said they are scheduled to have a vote on the nomination on Tuesday.

“I think it’s important for people to be on record on this,” Looney said.

The House members who voted against McDonald had a problem with his decision not to recuse himself on a case involving the repeal of the death penalty.

McDonald has authored 100 decisions and sat on a panel for nearly 500 decisions over his five years, but lawmakers in the House continued to return to his decision on the death penalty.

In 2012, Connecticut prospectively repealed the death penalty and left 11 men on death row. At the time, McDonald was Malloy’s chief legal counsel and denies, under questioning by the Judiciary Committee, offering the governor any legal advice about the constitutionality of the prospective repeal.

In a 4-3 decision in 2015 the court found that the death penalty “no longer serves any legitimate penological purpose.” The majority decision was written by Justice Richard Palmer, who faced a tough reconfirmation to the bench last year as a result.

Rep. William Tong, D-Stamford, said lawmakers can’t be in the position of “second guessing judges because that is a naked, straight up violation of the separation of powers.”

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.

In anticipation of next week’s Senate debate, a group of attorneys and other members of the legal profession gathered at the Legislative Office Building to explain why McDonald should be confirmed.

Leslie Levin, the Joel Barlow Professor of Law at the University of Connecticut Law School who has never met McDonald, said there was nothing wrong with him participating in that case.

“It was not only permitted by the Code of Judicial Conduct, but also well within the norms of what judges do,” Levin said.

She said the presumption is that a judge will participate.

“The subsequent comments I’ve heard about his participation reflect perhaps personal views on the part of some legislators of what he should have done, but are not consistent with what’s contained in the Code of Judicial Conduct,” Levin said.

William Dow, an attorney in Connecticut, said the way McDonald’s nomination has become a “political football” not only jeopardizes him and the way the Supreme Court works, but “goes down the line and infects and impacts future dealings with people who come before the legislature to be appointed as judges.”

Dow said it seems like the legislature is focused on a particular decision and “unravel it backwards from there.” He said they should be concerned about “fairness, industry, intelligence.”

He said judges make mistakes, but did they follow the process with “integrity and honesty?”

He said McDonald “checks all those boxes and we’ve seen this take a left-hand turn and that’s what causes us all concern.”

Anne Dranginis, a former Appellate Court Justice, said lawmakers should be looking at his “temperament” and the “way in which he renders an opinion,” but they shouldn’t judge him based on whether or not they agree with that decision.

“It’s really about the integrity of the person,” Dranginis said. “It is a very dynamic process and how is that person equipped to absorb that and have his opinions enriched.”

Erick Russell, an attorney with Pullman and Comley, said it’s hard for him to understand the real motivation behind attempts to derail McDonald’s confirmation.

“I do not think that our legislators are opposing him solely because he’s gay for the most part,” Russell said. “I think that it’s a factor.”

Dranginis said “We should make a distinction against implicit and explicit bias.”