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Sens. Beth Bye and Steve Cassano watch Senate President Martin Looney close (christine stuart / ctnewsjunkie)

HARTFORD, CT — There is little if any guidance for legislators to decide if a justice is qualified to sit on the bench or be a Supreme Court justice.

The lack of guidance was used by both sides to make their case about Supreme Court Justice Andrew McDonald even though the vote against his elevation to chief justice was a foregone conclusion.

A day before the vote, Republicans announced they would all be voting against McDonald, and they did.

The Senate voted 19-16 against McDonald’s elevation to chief justice. Sen. Joan Hartley, a Democrat from Waterbury, joined Republicans in voting against his nomination. Hartley said she thinks McDonald would have been approved Tuesday if he had recused himself in 2015 from sitting on the case that overturned the death penalty for the 11 men left on death row after the legislature prospectively repealed it, with the intention of leaving the 11 men on death row.

McDonald, who would have become the first openly gay chief justice of a supreme court if he was approved, will remain a Supreme Court justice. He has three more years left on his eight year appointment.

Shortly after the vote, McDonald, who is prohibited by the Judicial Code of Conduct from responding directly to the arguments against his elevation, issued a statement.

Gov. Dannel P. Malloy, who nominated McDonald, was unable to say what he would do next. He has five business days to make another nomination.

McDonald’s five-year record was debated for 13 hours by the Judiciary Committee, three hours by the House, and more than four hours by the Senate.

The debate in the Senate started out much like it did in the House, which approved McDonald’s confirmation by one vote two weeks ago.

Sen. John Kissel, the ranking Republican on the Judiciary Committee, said, “This is not about Justice McDonald’s personal views on how he wants to run his personal life.”

McDonald is gay and some believe the lawmakers who voted against him were doing so partly due to bias.

Kissel voted against civil unions in 2005 and against marriage equality in 2007. He also voted against changing language in the state statute to conform with marriage equality in 2009 following the Supreme Court’s decision guaranteeing marriage rights to same-sex couples.

“At no point during the Judiciary Committee’s public hearing for 13 hours did Justice McDonald personal life be brought in, but for the fact that the governor married him and his husband,” Kissel said. “I think that was brought in merely to show the close relationship he has with Governor Malloy and that was by Rep. O’Neill. But other than that — that was about it.”

Kissel said he hasn’t seen any bias or discrimination.

He said he wants to set that aside and focus on a handful of decisions.

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Senate Republican President Len Fasano (christine stuart / ctnewsjunkie)

Republican lawmakers disagreed with McDonald’s confirmation to chief justice and pointed to several cases, including his decision in State v. Santiago, which was the repeal of the death penalty.

Senate Republican President Len Fasano said McDonald “is intellectually qualified to handle this job, but the analysis can’t stop there.”

Fasano said they have an issue with McDonald being chief justice.

“When you make this determination you have to make a much deeper dive than you do when someone is just up for associate justice,” Fasano said. “As chief justice what is his vision of the role of the Supreme Court?”

Fasano called McDonald a “talented lawyer” but went onto to cite his positions in at least four different cases in which he disagreed with how McDonald reached the conclusion.

“In many of the cases I’m gonna talk about I agree with the result of the case,” Fasano said. “It’s not the end product. It’s how did they get there? What did they look at?”

However, when it came to completely abolishing the death penalty, Fasano disagreed with the outcome. He said Justice Richard Palmer, who authored the majority decision in that case, was only re-confirmed because lawmakers didn’t want to end his career with only three years left until he reached the mandatory retirement age of 70.

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Sen. John Kissel, R-Enfield (christine stuart / ctnewsjunkie)

Fasano said Republicans who disagreed with the death penalty decision are being consistent in their opposition to McDonald, because McDonald concurred with Palmer in that case.

Fasano went on to argue that McDonald should have recused himself from the case and went into detail about what he felt was judicial overreach in four cases. McDonald over the past five years has authored 100 opinions and has been on the panel for nearly 500.

Malloy, who was watching the debate, was unable to restrain himself from responding to Fasano.

In the middle of the debate, the governor’s office released a statement in response, saying Fasano’s “antics run afoul of the tradition and decorum our General Assembly has followed since 1636. During that long history, no legislative leader, let alone a member of the Connecticut bar, has nitpicked, parsed, and deconstructed the decisions of a sitting judge more than Senator Fasano did today. His overtly political behavior and his desire to focus on the outcome of decisions rather than the qualifications of the nominee is the very antithesis of how legislators should handle judicial nominations.”

He added that “Fasano’s charade not only defames the time-honored judicial selection process of the General Assembly, but also makes the Senator himself look small for stooping so low.”

Sen. Beth Bye, D-West Hartford, said Tuesday that during the 13-hour Judiciary Committee hearing they never asked McDonald what his vision is for chief justice.

“I did not hear one question about his role as chief administrator,” Bye said.

Bye wondered why McDonald could be considered qualified to be an associate justice, but not chief justice, when each role still only has one vote on a given case.

“That dog just won’t hunt,” Bye said. “This nominee is being treated very differently.”

She also highlighted a vote by McDonald who, as a state senator, endorsed former Justice Peter Zarella’s re-confirmation just months after Zarella wrote a dissent in the marriage equality lawsuit.

During that same debate in 2009, according to Bye, Kissel said “we have stated here time and time again how what a judge does on the bench on a particular case cannot be second-guessed.”

Bye said that was the test that used to be applied to justices, but Tuesday’s vote will wipe away those “good old days.”

The legal community has expressed concern that the decisions judges write will now face greater scrutiny and will cause judges to reach a different conclusion in some instances.

“Reviewing judicial decisions through too partisan a lens and with political purposes in mind poses risks to the independence of our judiciary,” a group of concerned lawyers and wrote.

Bye said that in 2009, when McDonald spoke about Zarella’s re-nomination, he demonstrated that he can separate his personal views from what is required.

She said there are objective editorials, letters from legal scholars, deans of law schools and bar associations all supporting McDonald’s confirmation.

“I am left to wonder standing here, why so different?” Bye said.

Sen. Gary Winfield, D-New Haven, said if you’re voting against McDonald “you better have a really good reason why.”

He said he has yet to hear one.

Senate President Martin Looney, D-New Haven, said he believes the mixture of homophobia and a political one.

“A major issue here was the perceived closeness of Andrew McDonald to the governor,” Looney said.

The two have been friends for decades and Malloy officiated McDonald’s wedding to his husband Charles Gray.