Credit: Rich Legg/iStockphoto.com.

The nomination of Justice Andrew McDonald to become our state Supreme Court’s next chief justice has caused quite the legislative stir. The recent tie vote on his nomination in the Judiciary Committee sends the matter to both houses without a favorable recommendation.

The elevation of McDonald quite properly deserves an in depth scrutiny of the opinions he wrote over the last five years, as well as his dissents and concurrences. Although he was overwhelmingly confirmed by the Legislature as a justice to the highest court, the chief justice does hold a special place in guiding the entire court system, as well as the ultimate interpretation of Connecticut law.

One angle of inquiry pursued by Republican Rep. Arthur O’Neill, however, was highly questionable, if not inappropriate. The representative went to great lengths in asking McDonald about his relationship with Gov. Dannel Malloy. The questions included how often are they in each other’s company; every month, every week? What exactly do they discuss? O’Neill asked McDonald to confirm that the governor officiated at his wedding to his longtime partner Charles Grey. On hearing the confirmation, O’Neill asked the justice if he knew if any other nominee to the chief justice position were ever married by the governor.

O’Neill’s stated position, shared by other Republican members of the Legislature, is that McDonald is disqualified from serving in the role of chief justice because of his longtime friendship with the governor. It appears their expressive animus for the governor has motivated their objection.

On March 18, 2004, the New York Times reported that Justice Antonin Scalia bluntly rejected demands that he recuse himself from a case involving Vice President Dick Cheney, his longtime friend. The Sierra Club, a party to the matter, called for the justice to step aside, particularly in light of a recent duck-hunting trip they shared together.

The justice responded with a 21-page memorandum which mocked the notion that his friendship and the trip could possibly swing his vote. And, that if anyone assumed this, “the nation is in deeper trouble than I had imagined.” Scalia argued that throughout American history justices have been friends with high-ranking public officials, and that he and other justices socialized with the vice president at his home on Christmas.

“A rule that required members of this court to remove themselves from cases in which the official actions of friends were at issue would be utterly disabling,” Scalia wrote. The only proper basis for recusal when a longtime friend was involved, he argued, was when the friend’s personal fortune or freedom were at stake.

Should McDonald be confirmed for the position, based on Scalia’s analysis, there may be matters where Malloy’s personal stakes would lead the justice to conclude he should step out of the case. That analysis, however, is far and away different from concluding that his friendship with the governor is a disqualifying condition from holding the position at all. Establishing a judicial appointment test of one’s level or depth of friendship with the appointing authority is both wrong and, in Scalia’s view, “utterly disabling.” It cannot be supported.