Forgotten among all the partisan agitation about whether Justice Andrew McDonald should or should not have disqualified himself in the Santiago death penalty decision is the implicit premise of many of those who oppose his nomination to be the next chief justice of the Connecticut Supreme Court.
That implicit premise is that he is a “liberal” justice imposing his egalitarian social views on the body politic, rather than faithfully construing the Legislature’s original intent and leaving the Legislature in charge of bringing the law up-to-date. Being familiar with his decisions, we write to challenge that premise.
Exhibit A in support of that premise is, of course, Santiago itself. But beyond that case, McDonald often sounds a lot like what a “conservative” justice sounds like. After all, as a legislator, he sounded a lot like Justice Antonin Scalia when he was the principal advocate for C.G.S. §1-2z, which incorporates Scalia’s way of interpreting statutes.
Let us turn to one of the latest criminal cases, State v. Skipwith, 326 Conn. 512 (2017). The court unanimously ruled that the Connecticut Constitution does not give a victim the right to seek to vacate a sentence where the victim’s rights had been violated. McDonald concurred but went further and said he would have exercised supervisory authority over the Superior Court to adopt procedures to ensure in the future that victims were given their rights.
If we now turn to one of the most recent civil cases, we find him dissenting in Williams v. Housing Authority, 327 Conn. 338 (2017), where the majority held the Bridgeport Housing Authority liable for a tenant’s death in a fire where the authority had failed to inspect the smoke detectors. And in Munn v. Hotchkiss School, 326 Conn. 540, 579 (2017), he was the only justice who thought the $41 million verdict against the school in favor of a student who got tick-borne encephalitis on a trip to China was probably excessive.
In Ruiz v. Victory Properties, 315 Conn. 320 (2015), the landlord kept a messy common area with cinder blocks strewn about. A child picked one up, climbed three flights of stairs and dropped it on another child. The 3-2 majority found the act was foreseeable and held the landlord liable. McDonald joined Justice Peter Zarella’s dissent.
And in State v. Skok, 318 Conn. 699 (2015), he wrote for the court that, as a matter of first impression, recording conversations between a victim and defendant, with only the victim’s consent, did not violate defendant’s state constitutional right against unreasonable searches.
We could cite more cases in his five-year career on the Supreme Court to support this editorial and we could cite other cases to contradict it. Like many justices here and elsewhere, his vote is not always predictable. The point of this editorial is not to pigeonhole him but to make it clear that, Santiago notwithstanding, McDonald is a centrist justice with whom all legislators should be very comfortable.