In Connecticut, The Unexpected Drama Of A Chief Justice's Nomination

Mar 1, 2018

Governor Dannel Malloy's choice for Connecticut’s next chief justice has just barely cleared a major hurdle. This week, Andrew McDonald endured 13 hours of questioning by the General Assembly Judiciary Committee. Sometime before 1 a.m. Tuesday morning, the hearing ended in a tie vote. 20 to 20.

McDonald’s nomination will now go to the full legislature with an unfavorable recommendation.

The vote has deepened the partisan lines that already exist in the legislature.   

To help get a better understanding of how this process is unfolding, Morning Edition Host Tom Kuser spoke with Dr. Gary Rose, a political scientist at Sacred Heart University. Below is a transcript of their conversation.

Welcome. Gary, I want to ask you about the latest development, where a Democratic State Senator recused herself from voting on McDonald’s nomination. We’ll get to that. But first I’d like to ask you about this hearing. Thirteen hours long, is that unusual? Have you seen anything like this before in the state?

No, I haven’t. It, in some respects, resembles what we see going on inside the nation’s capital, and the partisanship is just so intense this time around. No, I have not seen a hearing that has lasted 13 hours nor for that matter have I seen a hearing where there are so many different points of view concerning this nominee to the court. In particular, those who are opposed to McDonald, right now I think we’re up to three or four major reasons why they don’t want him as chief justice. No. I’ve never seen anything like this. This is really unprecedented in many ways.  

Democratic leaders were saying some Republicans were opposing McDonald’s nomination because of a lifestyle question, because he’s gay. Do you think there’s any merit to that?

Well, you know, actually I think there probably is, even though there is no Republican who will openly admit that that is why he or she is opposing Andrew McDonald. Yes. There is probably a concern that we would have the first and only gay chief justice presiding over our state Supreme Court in the country. And I think that’s probably a concern for some Republicans who strongly believe in traditional families and traditional marriages and so forth. And I think some of them might feel it’s sending a signal, in the wrong way, to the people of our state.

Now there are members of the GOP who also say they’re concerned that some of McDonald’s opinions as an associate Supreme Court justice suggest he’s an activist judge. First, what constitutes an activist judge and does he fit the description?

You know, Tom, this term activism is so overused and it is so at times distorted in describing what a judge is. And quite frankly often you hear conservatives rail against activist judges but they have no problem whatsoever when you have conservative judges who are also activists and are very strident about their positions and are willing to take cases that maybe should be deferred to the state legislature. I don’t really believe, to me, that holds any water, who’s an activist and who isn’t.  

From a political perspective, what about concerns by Republicans that Governor Malloy, a Democrat, has appointed most of the judges on the Supreme Court and he’s a lame duck and here he is nominating the person who would be the chief justice?

There we get into, I think, more serious matters. More so than the lifestyle of Andrew McDonald. I do believe that Republican actually have a legitimate concern in this respect, that the Governor in our state has really packed the Supreme Court with his people and this would be a continuation of that. 

Moreover, the association between Andrew McDonald and Governor Malloy is long, historical, it’s very tight. They’re very close to one another. He was connected with Dan Malloy when he was mayor of Stanford and then he was the Governor’s legal counsel. And then it was Malloy that put him on the Court as an associate justice and now here’s Malloy elevating him to the post of chief justice. Plus, Dan Malloy presided over his marriage as well, which is very interesting.  

Does this rise to a complete conflict of interest then?

Well it is, and I see it more as a separation of powers issue between the governorship and the Court. And I think the executive and judicial branches of government really should be separated quite clearly and this to me really does muddy the waters in that respect. There I believe the Republicans are on pretty fair ground.  

There are those who support McDonald that point out that he has served in every branch of state government and that should be seen as a positive, that’s in his favor.

Well that is in his favor, in that respect, but the point is who was he with in the executive branch. Yes he was a state senator, and I will say there are those who did have issues with him personally when he as a state senator. And he was somewhat of a lightning rod on some issues there. Particularly when he proposed that lay people start managing the finances of various Catholic parishes. There’s a wall of separation between church and state issue emerged there. But I think the larger issue is, yes it’s true, this is a very experienced individual, very experienced public servant. But it’s his incredibly close association with Governor Malloy that I think is obviously something that needs to be scrutinized.

In terms of the nomination process itself, what is it that you think we’re likely to see in the coming weeks?

The Judiciary Committee deadlocked. It’s now going to go to the House and the Senate. And you do have a Democratic Senator by the name of Slossberg who has recused herself. And so I think that actually gives the Republicans an opportunity to prevent this from passing in the state Senate. Next week I believe we’re going to have the votes, in the House and the Senate or maybe the week after. I would say that this nomination is certainly in jeopardy.